Improperly constituted tribunals

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Composition

If a tribunal is not properly constituted decisions arrived at by it may be ultra vires and invalid. Thus provisions in the statute relating to the composition of the tribunal must be strictly complied with.

 

Qualifications of members

The enabling statute will usually spell out what qualifications the various members of the tribunal must possess. Frequently, it is required that the Chairman must possess certain special qualifications e.g. that he must be a judge or ex-judge or possess expertise in a particular area. Conversely, often it is stated what things disqualify a person sitting as a member of the tribunal. The proceedings of the tribunal will be invalid if a person sits as a member of the tribunal who does not possess mandatory qualifications or a person sits when, according to the listed disqualifications, he is debarred from sitting,

 

In the case of Marawa v Minister of Transport & Ors 2000 (2) ZLR 225 (S) the court decided that the Civil Aviation Board was not properly constituted and a decision it had taken was therefore a nullity. Section 10(3) of the Civil Aviation Act [Chapter 13:16] required that Civil Aviation Board members be “appointed for their knowledge of and ability and experience in aviation or finance or for their suitability otherwise for appointment as members.” The court held that the functions of the Board were all specialist functions in relation to civil aviation. It was therefore entirely inappropriate to compose the Board entirely of persons without any qualifications in relation to civil aviation. There were many people with such qualifications that could have been appointed so it was not a situation where the Minister of necessity has to appoint persons without these qualifications because no such persons were available. The Board should have consisted of a preponderance of persons qualified in the field of aviation together with some persons with expertise in the field of finance and corporate management. Furthermore the Chairperson of the Board was disqualified in terms of the Civil Aviation Act as he was already a member of the board of two other statutory bodies. Finally s 10(3) the Act provided that at least one member “shall be appointed for his knowledge of law, in particular the law relating to aviation.” There was no person on the Board with any knowledge of law and the Board was therefore not properly constituted. The court rejected the argument of the respondent that the challenged decision of the Board was nonetheless still valid by virtue of s 23 of the Civil Aviation Act which provides that no decision of the Board “shall be invalid solely because” there was vacancy on the Board or a disqualified person purported to act as a member of the Board.

 

Complement and quorum

 

The complement is the total number of tribunal members, whereas the quorum is the minimum number of tribunal members who must sit in order for the proceedings of the tribunal to be valid. If the enabling legislation does not specify a quorum, all members of the tribunal must sit for its proceedings to be valid.

 

Even if a quorum is laid down, it would seem that there must be a full complement of tribunal members from which to draw the quorum as the quorum is merely the minimum number who may sit, and if all the tribunal members are able to sit, the person whose case is before the tribunal is entitled to have his case heard by as many persons as can sit. This cannot be complied with if, say, the number of persons appointed is only enough to constitute a bare quorum. Thus, if a member is incorrectly ruled by the Chairman to be disqualified from sitting, even though there was a quorum without him, the proceedings will still be invalid, see Botha v Cavanagh1953 (2) SA 418 (N).

 

Absence of member during hearing

 

If one of the members of a tribunal is absent for a substantial period of time during a hearing this may vitiate the proceedings, and this may apply even if a written record of the proceedings is kept which the member can peruse on his return. This would apply particularly where credibility of witnesses is important, as in a disciplinary matter.

 

Vacancies occurring after commencement of hearing

 

If a member of a tribunal that has started to hear a matter dies or becomes too ill to continue to sit, the proceedings will have to start again from the beginning with a new member to replace him.