Abstract
The relationship between a voluntary association and its members is founded on a contract. The constitution of the association regulates the acquisition and termination of the membership of the association. The courts have always had the jurisdiction to hear disputes between members of the association, and they can also interfere with its decision if it has acted ultra vires, or in an instance where its decision was vitiated by bias. After the dawn of the new constitutional democracy, the Constitution became the supreme law of the Republic, and it enshrined the transformative clauses. Thus, the process of transforming the adjudication of disputes in the private sector has to be aligned with the values embedded in the Constitution. This article explains the review of the decisions of a disciplinary tribunal prior to and after the 1994 constitutional dispensation. This it does by discussing the effect of transformative constitutionalism on the review of disputes in the private sector. The relevant transformative clauses in the Constitution are discussed. More particularly, the article concentrates on the effect of the just administrative clause in the Constitution and the Promotion of Just Administrative Act (PAJA) in transforming the rules of natural justice. Furthermore, instances where the PAJA is applicable with regard to the decision of a tribunal of voluntary association, are explained. Finally, a conclusion is drawn on the post-1994 courts’ reviews of decisions of disciplinary tribunals of voluntary associations.
Highlights
Voluntary associations, in terms of which people come together for purposes of achieving clearly determined goals, have always been part of our society
In cases where disputes occur among members of the association, they are resolved in terms of the constitution. This view is reinforced by the judgment of Turner v Jockey Club of South Africa,[2] where the Court held that the relationship between the voluntary association and its members is contractual, and that that relationship is governed by both the association’s rules and regulations which constitute the terms of the contract between the parties, and by the applicable common law
A conclusion is drawn about the effect of just administrative action, the Promotion of Administrative Justice Act,[5] and the right of access to court on the adjudication of disputes relating to decisions of disciplinary tribunals of voluntary associations
Summary
The relationship between a voluntary association and its members is founded on a contract. This article explains the review of the decisions of a disciplinary tribunal prior to and after the 1994 constitutional dispensation. This it does by discussing the effect of transformative constitutionalism on the review of disputes in the private sector. The article concentrates on the effect of the just administrative clause in the Constitution and the Promotion of Just Administrative Act (PAJA) in transforming the rules of natural justice. Instances where the PAJA is applicable with regard to the decision of a tribunal of voluntary association, are explained. A conclusion is drawn on the post-1994 courts’ reviews of decisions of disciplinary tribunals of voluntary associations
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