National Horse Racing Authority of Southern Africa v Naidoo and Another (AR 254/2008) [2009] ZAKZHC 7; 2010 (3) SA 182 (N) (23 February 2009)

CASE NO. AR 254/2008

IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG

In the matter between

THE NATIONAL HORSE RACING AUTHORITY

OF SOUTHERN AFRICA Appellant

and

CYRIL NAIDOO First Respondent

JONATHAN WITTS-HEWINSON N.O. Second Respondent

Delivered :

23 February 2009

J U D G M E N T

LEVINSOHN DJP :

[1] I have had the advantage of reading my Brother Wallis’s most comprehensive and erudite judgment. I entirely agree that the appeal must be allowed with the result that the sanction of a warning-off imposed by the Board falls to be reinstated.

[2] I have however considerable reservations in regard to the issue of whether the actions of the appellant’s disciplinary board can be described as administrative action and falls under the umbrella of PAJA.

[3] In my view there is much to be said for Mr Freund’s submission that the respondent did not expressly make out that case in its founding affidavit although it did use phraseology which could be said to have a bearing on the applicability of PAJA.

[4] Prima facie it seems to me that the weight of legal authority in South Africa favours the view that the quartet of Jockey Club cases is still

applicable and that the Constitution and PAJA did not have any impact on this. Any change in the law, particularly one that classifies

the disciplinary powers of the appellant as being the exercise of public powers and therefore administrative action under the umbrella

of PAJA would in my view result in a seismic shift in the state of the law, particularly as it affects the appellant’s activities.

[5] It seems to me that this is not the case to decide that point and clearly my Brother has left it open despite expressing fairly strong views on the topic. I am not sure that the size of the sporting body and the extent of its commercial enterprise should be the yardstick to determine whether it exercises a public function or not. Persons who are members of less visible sporting bodies could justifiably claim that there would be a lurking inequality if that should be the law’s approach to domestic disciplinary tribunals. In my view it is in the public interest that there be uniformity in the law’s approach to these tribunals.

[6] In my opinion it is doubtful whether the framers of the Constitution and the legislature in enacting PAJA intended to bring such domestic tribunals under its umbrella. It may well be an aspect which needs to be dealt with in the future by the legislature.

[7] Assuming as I have done that the existing quartet of Jockey Club cases was applicable to the hearing in casu the question arises whether that law which would be regarded as South Africa’s common law on the topic ought to be developed to bring it into line with the values embodied in the Bill of Rights. My Brother has alluded to certain logical difficulties in the way of doing this.

[8] In Turner v Jockey Club of South Africa 1974 (3) SA 633 at 646 Botha JA dealt in detail with the concept of the fundamental principles of justice which are applicable and which arise from the express and implied terms of the agreement between the Jockey Club and those that are bound by that agreement. The learned

judge of appeal observed : -

“What the fundamental principles of justice are which underlie our system of law, and which are to be read as tacitly included in the respondent's rules, have never been exhaustively defined and are not altogether clear. In Russell v Duke of Norfolk and Others, (1949) 1 All E.R. 109, Lord TUCKER said at p. 118 that -

"The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case."

The principles of natural justice do not require a domestic tribunal to follow the procedure and to apply the technical rules of evidence observed in a court of law, but they do require such a tribunal to adopt a procedure which would afford the person charged a proper hearing by the tribunal, and an opportunity of producing his evidence and of correcting or contradicting any prejudicial statement or allegation made against him ( Marlin's case, supra at p. 126; Bekker v Western Province Sports Club (Inc), 1972 (3) SA 803 (C) at p. 811). The tribunal is required to listen fairly to both sides and to observe "the principles of fair play" (Marlin's case, supra at pp. 126 and 128). In addition to what may be described as the procedural requirements, the fundamental principles of justice

require a domestic tribunal to discharge its duties honestly and impartially (Dabner v SA Railways and Harbours, 1920 AD 583 at p. 589). They require also that the tribunal's finding of the facts on which its decision is to be based shall be "fair and bona fide" (Jockey Club of S.A. v Transvaal Racing Club, supra at p. 450). It is, in other words, "under an obligation to act honestly and in good faith (Maclean v Workers' Union, supra at p. 623).

(My emphasis).

[9] At page 647 the learned judge dealt with an interesting submission which had been made by the appellant’s counsel as follows : -

“Counsel for the appellant contended that these requirements postulate more than honesty and good faith, and that no decision of a domestic tribunal should be sustained unless it is fair and reasonable in the sense that there was evidence on which a reasonable man, acting fairly and bona fide, could have arrived at that decision. Counsel for the respondent strenuously resisted this proposition. It is, however, in view of my conclusions on the other alleged grounds upon which the conviction and sentence are sought to be set aside, unnecessary to decide this point.”

[10] As the learned judge of appeal observed the concept of the fundamental principles of justice as applicable to domestic tribunals is an elastic concept and I would hasten to say that this would depend upon the nature of the hearing, the complexity or otherwise of the matters in dispute before the particular tribunal. In the instant case we have seen that a lengthy hearing took place, expert witnesses testified and decisions had to be made on credibility. By all accounts this was not your common-or-garden disciplinary hearing where, for example, a decision could be summarily made on viewing the patrol film of a horse race.

[11] In these circumstances it seems to me taking the cue from counsel’s submission in the Turner case, supra, that it would not be inappropriate to introduce a further ingredient into the fundamental principles of justice concept and that is one of rationality. This would particularly be apposite in a complex case where a reviewing Court would be in exactly the same position to assess the objective evidence in the case and would be able to conclude that the decision made is rational in relation to the evidence laid before the tribunal. In my opinion this would be a development of the common law which would be wholly in accordance with the values encompassed in the Bill of Rights.

[12] My Brother in his judgment has indeed subjected the decision of the Board to the above test of rationality – a test which he correctly points out is more favourable to the respondent. I agree entirely with his approach and the ultimate conclusion that he reached upon an analysis of all the facts in the case.

[13] In result the appeal is allowed with costs. The order of the Court a quo is set aside and there is substituted therefor the following order : -

“The application is dismissed with costs such costs to include the costs consequent upon the employment of two counsel.”