Court name
High Court
Case number
APPEAL 328 of 1998
Title

B K A Oppermann President of the Professional Hunting Association (APPEAL 328 of 1998) [1999] NAHC 21 (14 December 1999);

Media neutral citation
[1999] NAHC 21
















A
328/98















B K A OPPERMANN vs THE PRESIDENT OF
THE PROFESSIONAL HUNTING ASSOCIATION.







Hannah. J
1999-12-14















ADMINISTRATIVE LAW











Voluntary
Association - Rights of members to be found in the rules, if any. -
Court not entitled to go behind the rules and revise or alter them so
as to make them more reasonable or consonant with ideas of fairness.


























































































































IN THE HIGH COURT OF NAMIBIA












In the matter
between:



B.K.A. OPPERMANN APPLICANT



and















THE PRESIDENT OF THE PROFESSIONAL







HUNTING ASSOCIATION OF
NAMIBIA
RESPONDENT











CORAM: HANNAH,
J



Heard on:
23-11-1999



Delivered
on: 14-12-1999
JUDGMENT



HANNAH, J: The
applicant seeks an order setting aside two decisions of the Executive
Committee of the Namibian Professional Hunting Association together
with certain ancillary relief. For the sake of convenience I will
refer to that association as "NAPHA". The applicant was an
extraordinary member of NAPHA and the decision which precipitated
this application was a decision made by the Executive Committee on or
about 12
lh
November, 1997 to expel him from the association. However, almost
eleven months earlier, namely at the end of December, 1996 the
Executive Committee had conditionally suspended the applicant's
membership and he also seeks to have this decision set aside. The
respondent concedes that the applicant is entitled to have the
expulsion decision set aside and the only dispute between the parties
relates to the conditional suspension.











The history
of the matter is briefly as follows. The applicant carries on
business as a taxidermist. NAPHA's constitution provides that persons
with a special interest in trophy hunting can become extraordinary
members and in 1988 the applicant applied for and obtained membership
of the association. By signing a declaration of membership he bound
himself to NAPHA's constitution. On 18
lh
September, 1996 NAPHA wrote to the applicant stating that the
Executive Committee had been receiving more and more complaints from
the applicant's customers about delay in receiving trophies, damaged
trophies and trophies not being received at all. The applicant
replied asking for details of the complaints. NAPHA responded by
letter dated 23
rd
October
stating that the applicant should have knowledge of the complaints
and then provided the names of seven customers with an outline of
what each was complaining about. It also asked the applicant to
comment on those complaints before the end of November and to state
whether they have been or are being resolved. On 15
th
November the applicant addressed a letter to NAPHA dealing with the
complaints but apparently this letter was never delivered. Then by
letter dated 30
th
December the Executive Committee informed the applicant that he was
suspended from the association until the complaints were
satisfactorily resolved. The reasons given for the decision were that
the applicant had failed to comment on the complaints by the end of
November as required in the letter dated 23
rd
October and had failed to resolve the complaints. In the absence of
the applicant one of his employees replied to this letter and when
the applicant's secretary returned from holiday she faxed a copy of
the applicant's letter dated 15
th
November
to NAPHA. When the applicant returned from holiday he wrote
protesting his suspension stating that the decision was unlawful. The
applicant then instructed an attorney to act on his behalf.











The attorney
wrote to NAPHA stating that although the applicant was entitled to
bring an application in the High Court to have the decision to
suspend him set aside his instructions were to explore, on a without
prejudice basis, an amicable withdrawal of the suspension. NAPHA
replied on 7
th
April, 1997 stating that the Executive Committee was willing to
listen to any representations but its demand that the complaints set
out in its letter dated 23
rd
October be resolved still stood. There then followed certain
communications between the applicant's attorney and NAPHA culminating
in a letter dated 3
rd
July from NAPHA to the attorney stating that if the complaints were
not sorted out before 1
st
August the applicant would be expelled. The letter also stated that
complaints were still being received but it did not identify them. In
his reply to this letter the attorney asked for a final list and
details of complaints and although there was no reply to this letter
the attorney did attend a meeting held by the Executive Committee in
August. NAPHA undertook to write to each complainant in order to
ascertain whether his complaint had been satisfactorily resolved and
asked that the applicant do likewise. Details of two new complaints
were handed to the attorney. The applicant deposes that he did indeed
write to, or contact, the various complainants and he annexes to his
affidavit a copy of one of the letters which were written. However,
whilst the applicant was waiting for replies to his letters NAPHA
wrote to him on 12
th
November informing him that the Executive Committee had unanimously
decided to expel him from the association as from 1
st
November, 1997.















In his
founding affidavit the applicant claims that the actions of NAPHA and
its Executive



Committee,
and in particular the expulsion from the association, have seriously
and prejudicially affected his taxidermy business and have reflected
adversely on his character. The respondent does not dispute this
claim but avers that any damage the applicant has suffered is of his
own making.











Expulsion and
suspension are dealt with in Clause 5 of NAPHA's constitution. The
material sub-clauses are the following:















"5.5
Expulsion occurs




  1. if the
    member of the Association still remains in arrears with the
    membership fee for one year, despite having received two reminders,



  2. in the case
    of serious and repeated violations of the constitution or disregard
    of resolutions binding upon the Association, after being cautioned
    in writing without success,



  3. due to
    dishonourable conduct within or outside the confines of the
    Association,



  4. in the case
    of other serious reasons affecting the discipline of the
    Association.








  1. The
    expulsion, which comes into effect immediately, is decided upon by
    the executive committee by simple majority. Before the executive
    committee takes such a decision, the member is granted a period of
    at least four weeks to respond to the accusations levelled against
    him. The member must be informed about the expulsion order by means
    of a registered letter spelling out the reasons in detail.



  2. It is
    possible to appeal against this decision to a tribunal by depositing
    N$200. The written appeal must reach the executive committee within
    one month of the expulsion order. During the tribunal the member is
    granted the opportunity to defend himself in person.





5.8



if the
executive committee is of the opinion that a member is consciously
violating the constitution, decisions or resolutions of





the
Association, disciplinary proceedings may be initiated against such
member. Taking into consideration all evidence put before the
committee, the executive committee may discipline the accused by
reprimanding or warning him, suspending his membership or expelling
him from the Association (permanently or temporarily).







5.8 Should
the member fail to appeal against the expulsion order or not do so
in time, he has no legal grounds to claim in court that his
expulsion was unlawful."







In his
founding affidavit the applicant sets out quite wide-ranging grounds
for setting aside NAPHA's decision to suspend him but several of
these overlap. Essentially his case is, and this was the case argued
by Mr Coetzee on his behalf, that the Executive Committee did not
act in accordance with the association's constitution and, in any
event, acted unfairly and in breach of the rules of natural justice
in that it failed to formulate a charge against him, it failed to
notify him of any charge, it failed to give him notice of
disciplinary proceedings and accordingly failed to give him the
opportunity to be heard. I will elaborate on the foregoing but
before doing so will deal with the question whether, in terms of the
constitution to which the applicant bound himself, the Executive
Committee was required to formulate a charge, notify him of such
charge and afford him a proper hearing, as Mr Coetzee contends to be
the case.











It seems to
me that clause 5 makes a clear distinction between expulsion on the
one hand and reprimand, warning and suspension on the other. Where
expulsion is being considered a member must be granted a period of
at least four weeks to respond to the accusations levelled against
him and it is implicit in this that he must be informed of the
accusations or charges. It would appear that in the case of
expulsion a member is not given a right to appear before the
Executive Committee but he can appeal to a tribunal against any
expulsion order which the Executive



Committee
may make. It is clear that the expelled member can appear before the
Tribunal in person to defend himself. In terms of clause 8.8.1 of
the constitution the tribunal consists of a lawyer and two members
of the association who may not be members of the Executive
Committee. Presumably, the thinking behind this particular procedure
in the case of expulsion is that the Executive Committee will
normally be complainant, prosecutor and judge in the first instance
therefore an aggrieved member is given the opportunity to present
his case thereafter to an impartial tribunal.











By way of
contrast, clause 5 provides for no such machinery in the case of
reprimand, warning or suspension. Presumably, the founding members
of the association who adopted the constitution took the view that
in the case of these sanctions they were of such an insignificant
nature when compared to expulsion that it was unnecessary to provide
that charges be formulated and communicated. It was simply left to
the Executive Committee to act on whatever evidence it had before
it. What is the effect of this on the application I have before me?











A similar
situation arose in
Bekker
v Western Province Sports Club (Inc.)
1972(3)
SA 803(C). Theron, J. had the following to say at 811 A to F:















"This
raises the question as to whether the procedure adopted by the
committee, which allowed it to come to a decision possibly bearing
so inequitably on the applicant, could conceivably have been
correct.



When it
falls to the committee of a club, or of a trade union, or of some
other voluntary association of persons who have subscribed in one
way or another to a constitution, to investigate a complaint or
charge of misconduct against any of its members which may result in
disciplinary measures requiring to be taken in terms of the
constitution against the accused member, the committee concerned
proceeds to act in the capacity of what is termed a domestic
tribunal. It does not, of course, become converted into an ordinary
court of law and is accordingly not obliged to follow the procedure
or to apply the technical rules of evidence observed in a tribunal
of that nature. As a general rule, however, it is incumbent upon the
committee, while so sitting as a domestic tribunal, to give effect
to certain elementary but fundamental principles of fairness which
underlie our system of law - as they do also, for instance, the law
of England. These principles are sometimes (compendiously but not
very accurately) described as the principles of natural justice. For
present purposes all that need be said about them is that they
include the following:




  1. that the
    person charged or complained about must be afforded a hearing by
    the committee; and



  2. that he
    must have due and proper opportunity of producing his evidence and
    stating his contentions on all relevant points




- cf. Martin
v
Durban
Turf Club and Others
1942
A.D. 112 at p. 126. It is an obvious pre-requisite for the
application of these two principles that timeous and proper prior
notice of the charges or complaints which the committee concerned is
proposing to investigate should be furnished to the person charged
or complained about.



Where a
domestic tribunal is bound to observe the fundamental principles of
justice to which I have just referred but fails to do so, the
Supreme Court has power to intervene at the instance of an aggrieved
party and set its proceedings aside on review."











But then at
812 C to 813 B the learned judge continued:















"I have
stated above that, as a general rule, it is incumbent upon the
committee of a voluntary society, when pursuing disciplinary
enquiries into the conduct of members of the society, to give effect
to the two fundamental principles of fairness or justice mentioned
by me. But I should add now that the members of a society can
contract in such a way as to make this general rule inapplicable.
When forming or joining the society or amending





its
constitution, they can agree (whether expressly or impliedly) that
such domestic tribunal (if any) as may have been decided upon shall
be at liberty to ignore the dictates of natural justice, in some or
even all of the classes of case falling within its jurisdiction.
Whether or not the members have done so, will usually be apparent
from the rules of the society, by which they have agreed to be
bound. In
Martin
v
Durban
Turf Club and Others, supra
(where
the appellant, a jockey licensed by the Jockey Club of South Africa,
had complained about the procedure followed at a meeting of the
stewards of the Durban Turf Club which had resulted in his being
"warned off for a period of six months), the late Mr. Justice
TINDALL, after formulating the principles of fairness to which I
have already referred, remarked (at p 126-7 of his judgment):



'The said
test of fundamental fairness, however, must be applied with due
regard to the nature of the tribunal or adjudicating body and the
agreement, if any, which may exist between the persons affected. In
the present case the tribunal's jurisdiction really depends on a
contract between the appellant and the Jockey Club. The appellant
applied for and accepted a licence stated to be subject to the rules
and regulations of the Jockey Club, and he is bound by the rules
relating to enquiries.'



The learned
Judge of Appeal then proceeded to quote with approval certain
passages from the judgment of MAUGHAM, J., in the English case of
Maclean
v
Workers
Union,
98
L.J.Ch. 293: (1929) 1 Ch.D. 602, where it was held that no relief
could be afforded to the plaintiff, who had been expelled by his
trade union, as the Courts had only a limited jurisdiction over
domestic tribunals and could not give relief to members of
associations on whom hardship was worked by decisions given honestly
and in good faith under the rules of such associations, even though
the rules were unfair or unjust. The first of the passages so quoted
by TINDALL, J.A., appears to me to be particularly apposite to the
matter presently before me:





'It
seems to me reasonably clear that the rights of the plaintiff
against the defendants must depend simply on the contract, and that
the material terms of the contract must be found in the rules. It is
true that Lord ESHER in
Allison
v General Council of Medical Education and Registration,
(1894)
1 Q.B. 758, appears to have invoked the principle of public policy.
I need not consider whether that principle would be held at the
present time to be properly applicable even in the case of a
tribunal established by the Medical Act, 1958 (21 and 22 Vict.
C.90). In the case I have before me - and I may add in such a case
as a power of expulsion in a member's club - it seems to me
reasonably clear that the matter can only depend on contract express
or implied. If, for instance, there was a clearly expressed rule
stating that a member might be expelled by a defined body without
calling upon the member in question to explain his conduct, I see no
reason for supposing that the
Courts
would interfere with such a rule on the ground of public policy."







Theron, J.
then considered the relevant rule of the respondent club and
concluded that a member may be suspended without being afforded a
prior hearing.











Although
Bekker's
case
(supra)
received
no mention by either counsel during argument I think the principle
involved was recognised by Mr Coetzee who, in his written argument,
submitted that the Court should adopt a wider and more liberal
approach to the review of decisions made by private organisations
especially when the decisions relate to disciplinary matters. In
support of this argument Mr Coetzee referred to
Baxter:
Administrative Law
at
341 where the following appears:















" the
private nature of the agreement has enabled some courts to



adopt a more
expansive
view
of the scope of review. They have seemed more prepared to read into
the agreement provisions of fairness and reasonableness as these
concepts are interpreted at common law. No doubt the wider or more
liberal approach to judicial review is based partly on the
realization that members of private organizations often have little
choice over the terms of their agreements at all, including those
relating to penal and disciplinary provisions. It is submitted that
this view is much more realistic."







Various
cases are referred to in support of the foregoing proposition but I
do not find them of much assistance. For example, reference is made
to
Crisp
v South African Council of the Amalgamated Engineering Union
1930
AD 225 where Wessels, J. A. said at 238:















"If,
therefore, a party aggrieved has a complaint against the act of an
official or committee of a voluntary society he must bring this
complaint before the proper domestic tribunal appointed for that
purpose by the rules of the society, and if the tribunal or
tribunals act
bona
fide
according
to the rules and according to the dictates of natural justice, the
law Courts will not interfere; but if they do not do so the
aggrieved person can always resort to the Courts of law to have his
rights vindicated or a wrong remedied. No voluntary arrangement can
take that right away. In such cases Courts of law will not allow
their jurisdiction to be ousted."







However,
these observations were not approved in
Martin
v
Durban
Turf Club and Others
1942
AD 112 and, in my respectful view, for good reason. Why should the
Courts go behind the rules of a voluntary association and revise or
alter them so as to make them more reasonable or consonant with
ideas of fairness? And I do not think that the applicant can derive
any assistance from Article 18 of the Constitution. This provides:











"Administrative
bodies and administrative officials shall act fairly and reasonably
and comply with the requirements imposed upon such bodies and
officials by common law and any relevant legislation, and persons
aggrieved by the exercise of such acts and decisions shall have the
right to seek redress before a competent Court or Tribunal."







I will
accept that the respondent is an administrative body for the purpose
of Article 18 and that it is therefore required to act fairly and
reasonably but, in my view, its actions must be judged in the
context of its rules. As I have already indicated, clause 5, by
necessary implication, clearly excludes the formulation and
communication of charges when it comes to reprimand, warning or
suspension and no doubt this was decided upon by the founding
members of the association for good reason. Presumably, it was
considered that these particular sanctions could be imposed
summarily because the member being disciplined would himself be in a
position to remedy the complaint made against him. And when one
turns to the facts of the present case one finds that to be
precisely the situation. The Executive Committee first apprised the
applicant of its concerns about the number of complaints being
addressed to the association about the service





-li­ne
was providing to customers. At the request of the applicant it
provided details of the complaints. It also asked him to comment on
the complaints before the end of November, 1996 and to state whether
they have been or are being resolved. The end of November came and
went but no comments were received. The applicant was suspended from
the association until the complaints were satisfactorily resolved.
What is unfair or unreasonable about that? The applicant had the
remedy in his own hands. All he had to do was to show that the
complaints had been satisfactorily resolved and the suspension would
then be lifted. If it was not then in that case he could seek relief
from this Court, but in my judgment, not by attacking the suspension
itself as he has sought to do in this application. I therefore find
myself unable to grant the relief sought in relation to the
suspension. In these circumstances I find it unnecessary to deal
with certain other arguments advanced on behalf of the respondent as
to why the relief sought should not be granted.











As for the
costs, the applicant was obliged to bring the application to obtain
the relief regarding his expulsion and I consider he is entitled to
the costs of drafting the Notice of Motion and the founding
affidavit. Save for that, costs will be awarded to the respondent.












For the
foregoing reasons it is ordered:























1 •
(a) That the decision of the respondent to expel the applicant
from the Namibian Professional Hunting Association communicated to
him in a letter dated 12
th
November,
1997 is set aside; (b) That the said decision is declared to be
null and void and of no force or effect.



(c) That
the applicant is declared to be still an extraordinary member of the
Namibian Professional Hunting Association.




  1. That the
    relief sought in prayer one of the Notice of Motion is refused.



  2. That the
    respondent pays the applicant's costs of drafting the Notice of
    Motion and the founding affidavit;



  3. That save
    for the costs referred to in 3., the applicant pays the costs of
    this application.




For the
Applicant: Advocate G.S. Coetzee and with him Advocate J.A.N. Stryd
Instructed by: Messrs Chris Brandt Attorneys











For the
Respondent: Advocate T.J. Frank, S.C. Instructed by: Messrs P F
Koep & Co