Fancourt Golf Estate in George on 18 February 2024. It has three championship golf courses. (Photo: Johan Rynners / Getty Images) 
The conduct of a billionaire golf course owner at Fancourt who terminated the membership of three residents who had snubbed him was unsportsmanlike, the Western Cape High Court has found.
Hasso Plattner, German founder of global software giant SAP, has been ordered to immediately reinstate the memberships of residents Brian Buckham, John Millar and Warren Erfman, which he terminated two years ago. The individuals had been members of The Links Golf course for between 10 and 20 years.
The matter between Buckham, Millar and Erfman and Platner Golf (PTY), and The Links Golf (PTY) LTD was referred to the high court for arbitration when the dispute could not be settled.
Game of 'honesty and integrity'
Handing down the order on 1 March 2024, Judge Derek Wille noted that golf was “a game of honesty and integrity” and that in his view “this also applies to the management of golf clubs in that their personnel must act with honesty and integrity”.
Fancourt, with its courses designed by golfing icon, Gary Player, is world famous and lies on the magnificent Garden Route with views of the Outeniqua mountains. It has three championship golf courses, including The Links, ranked one of the top courses in the country.
The course staged the 2003 Presidents Cup matches between the US and the International team, captained by Jack Nicklaus and Player respectively.
Wille noted that golf clubs such as Fancourt existed to provide a space for the activities of golf to be carried on “in the spirit of sportsmanship, fair play and camaraderie”.
Plattner is a keen yachtsman and golfer who also owns the Cordevalle Golf Club in California. In 2015, he set up the Hasso Plattner Foundation whose aims are to “accelerate the adoption of digital technologies” through art and culture.
He is also known for his philanthropic programmes, having pledged to donate €6-million (about R125-million) to the Isombululu HIV/AIDS awareness programme, as well as covering the costs of a second 46664 Benefit Concert, which took place at Fancourt in 2005. Artists included Annie Lennox, Queen and Paul Rogers, Katie Melua, Prime Circle, and Juluka with Johnny Clegg. It was hosted by Will Smith.
Plattner, who single-mindedly drove the termination of the men’s memberships, had alleged that they had behaved aggressively, which was against the rules.
Wille noted that golf clubs such as Fancourt existed to provide a space for the activities of golf to be carried on “in the spirit of sportsmanship, fair play and camaraderie”.
Not everyone gets in
The court noted that all of the residents were invited to join the exclusive club and had complied with their financial benefits. This was not disputed. There were also no other complaints about their conduct and behaviour on the course or in the club’s precinct.
The residents’ membership was “entirely discreet from their membership in and of the other two golf courses in the nearby golfing complex”.
The third club’s membership was “exclusive” noted Wille, by invitation only. The club had rules, noted the court, which all members were obliged to comply with, including Plattner, “the controlling mind” behind the entire complex.
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While the rules of the club were unambiguous, in that they allowed Plattner to terminate a member’s membership if he was of the opinion that the individual had behaved “in an unseemly, irresponsible or unsporting manner” or committed “any improper or dishonest act, whether in relation to the club and its affairs or otherwise” but this was not as simple.
/file/dailymaverick/wp-content/uploads/2024/03/2013749434.jpg "The 18th green of Fancourt Golf Estate in George. Day four of the Dimension Data Pro-Am on 18 February 2024. (Photo: Johan Rynners / Getty Images)")
Plattner’s argument
Plattner had argued that he was entitled to terminate the membership of someone who no longer displayed “a capacity for friendship in the ‘Links’ context”.
Noted the judge: “Apart from its incomprehensible nature, this expression, which is even more vague than the conduct described in the rules, appears to mean that the first respondent considers it has a discretion to terminate the memberships of those it considers have spurned its friendship, even if those members do not behave in a manner prohibited in terms of the rules when doing so.”
Plattner had said he had noted that the residents were guilty of “unseemly and irresponsible” conduct and that this “constituted a spurning of friendship” which had justified his exercising of power to terminate the memberships.
A homeowners association takes care of the communal interests of the property owners at Fancourt and protects and regulates matters, evidence revealed. The association had instituted arbitration proceedings against Plattner when he first withdrew the memberships. The three residents were all directors of the homeowners association.
The termination of membership was met with resistance, after which legal proceedings were instituted. In a flurry of correspondence, Plattner had expressly stated that their memberships had been cancelled because they had not wanted a friendship with him or his family.
Controlling mind
There was no doubt that the “controlling mind” (a legal term) behind Fancourt was Plattner, and after his termination of the memberships he had attempted to “hoodwink” the court by relying on new and unspecified allegations.
Buckham, Millar and Erfman said the entire case was about “extreme bias” and that they had not been afforded a hearing of any kind, despite the rules providing for this.
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Plattner had argued that bias was irrelevant as the company had the discretion to terminate memberships. The judge disagreed.
“I say this because the bias the applicants (the residents) complain of is of a more fundamental kind involving a pre-judgment of the matter. This type of bias cannot be excluded by contract. Given the seriousness of the bias, natural justice will trump that contractual iteration”.
“A promise not to be biased does not eliminate the fact of bias. The very reason bias is problematic is that it cannot be ‘switched off’ because of the mere promise it will not present itself.”
It had long been accepted that certain decisions by private entities were subject to the fundamental principles of justice. Wille said this meant that “domestic tribunals must follow a fair procedure to afford persons a fair hearing and allow them to present their evidence”.
The bottom line was that “the rules of justice will not permit whimsical and biased decisions that will have significant effects on third parties, such as the termination and then the suspension of the applicants’ memberships without a hearing, let alone a fair hearing”.
Wille said he believed that granting relief to the applicants would not be “overboard and would not (in these peculiar circumstances) amount to judicial overreach”. DM