National Horse Racing Authority of Southern Africa v Naidoo and Another (AR.254/08) [2009] ZAKZHC 6; 2010 (3) SA 182 (N) (23 February 2009)

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION CASE NO. AR.254/08

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 on: 23 February 2009

JUDGMENT

__________________________________________________________________

WALLIS J.

[1] The first respondent, Mr Cyril Naidoo, has been a racehorse trainer since 1993. He has achieved substantial success in that capacity and at the time of the events giving rise to the present proceedings had some 120 horses in training in his yard.

[2] On 27 October 2005, after a race at the Vaal Racecourse, a horse trained by Mr Naidoo tested positive for a prohibited substance, a drug called Ibuprofen. In consequence the appellant (the NHA), caused his stable premises at the Vaal to be searched by Mr van Rensburg, a special investigator employed by it. This search discovered various items, the ones of importance for present purposes being substantial quantities of Schedule 3, 4 and 5 drugs listed in those Schedules of the Medicine and Related Substances Control Act 101 of 1965 as well as a number of receipts and accounts for the supply of such drugs to Mr Naidoo.

[3] In consequence of the discovery of these items the NHA appointed a board of enquiry, under the chairmanship of the second respondent, to investigate the circumstances and reasons for Mr Naidoo being in possession of large quantities of anti-inflammatory tablets and various other medical substances and also the circumstances surrounding numerous pharmaceutical items identified in the pharmaceutical invoices found at his stables.

[4] The proceedings at the Board of Enquiry were delayed as a result of certain applications brought in the High Court by Mr Naidoo against the NHA. Those applications were not successful and in the result the initial consideration of the merits of the matter took place at a hearing convened on 26 January 2007.

[5] In the course of the proceedings before the enquiry it was accepted that the quantities of drugs reflected on the bundle of invoices handed to the Board were inordinately large and after some discussion between the legal representatives of the NHA and Mr Naidoo an admission was recorded that the quantities evidenced by the documents in the bundle were unusually high and more than one would expect a trainer to have in his yard at any given time for the purpose of treating his own horses.

[6] Not surprisingly that admission called for an explanation and one was given by Mr Naidoo by way of evidence. He explained that he had certain horses (mares, yearlings and weanlings) standing on a stud farm in the Queenstown area and that the drugs in question were to be used in relation to these horses. According to him the medication that he purchased as reflected on the invoice was merely delivered to his stables for the sake of convenience, but was not for the purpose of stable use. Instead he transported it to the farm where he had his mares, yearlings and weanlings. According to his evidence he would visit the stud farm once or twice a week and administer the medicine to the horses there. That was his sole intention in acquiring these quantities of drugs.

[7] As this explanation had not been placed on record before Mr Naidoo gave evidence it led to an adjournment of the proceedings before the Board in order to enable the NHA to undertake further investigation. This it did and the enquiry resumed on 8 June 2007.

[8] At the resumed enquiry there was evidence from Dr McPherson and Professor Guthrie in regard to the use of the drugs in question for the purposes testified to by Mr Naidoo. Their evidence not only confirmed that Mr Naidoo had acquired an extraordinarily large quantity of drugs but that it was highly improbable on medical grounds that Mr Naidoo’s explanation was true. Even more tellingly there was evidence from the owner of the stud farm, Mr Sahd, who in no uncertain terms characterised Mr Naidoo’s evidence as false. He also testified, without challenge, that Mr Naidoo had tried to induce him to change his statement to one more favourable to his interests because Mr Naidoo complained “that I was busy sinking him by making this statement and I should change this statement”. He said that his response to this suggestion was:

“And I said to Cyril I would not change my statement, come hell or high water, it stood, because that was the truth. I wasn’t influenced by anybody and I am not in the habit of wasting people’s time …”

[9] Mr Naidoo gave no more evidence and no witnesses were led on his behalf. This brought the enquiry to an end and at this stage the Board put two formal charges to him. Those charges were:

“Firstly a contravention of Rule 10.5.16.1 read with Rule 71.1 in that you had in your possession, or on the premises where you trained, the following medicines, drugs or related substances, namely, the items listed in NHA 10, and, indeed, in the amounts or quantities therein listed, those medicines, or drugs or related substances, which are identified as Schedule 3, 4 or 5, being substances listed in the said Schedules of the Medicines and Related Substances Control Act 101 of 1965 over the period 5 October 2001 to 25 October 2005.

Secondly, a charge under Rule 72.1.17 read with Rule 71.3 in that you attempted during the course of these proceedings to mislead this Board into believing that you had the scheduled drugs referred to in the earlier charge solely for the purposes of treating your brood mares, yearlings and weanings, whereas in truth and in fact you had these substances in your possession for a purpose or purposes not disclosed to this Board.”

[10] Mr Naidoo pleaded guilty to the first of these charges and not guilty to the second. When his attorney was asked whether there was any evidence he would like to lead in relation to the second charge he indicated that his client had “nothing to add” on the basis that there had already been “sufficient evidence”. Not surprisingly in those circumstances the Board then convicted Mr Naidoo on both charges and, taking the two together for the purposes of sanction, imposed a warning off. Under the appellant’s rules that would debar him from all premises subject to the NHA’s regulatory control and effectively bring his career as a trainer to an end.

[11] Mr Naidoo sought to challenge both his conviction on these two charges and the sanction of warning off in review proceedings before the Durban and Coast Local Division of the High Court. Insofar as the convictions on the two charges are concerned those proceedings were unsuccessful and there is no appeal against that decision. However the sanction of warning off was set aside by the court a quo and it is that decision that is the subject of this appeal.

[12] At the outset it is necessary to explore the basis upon which Mr Naidoo was entitled to invoke the jurisdiction of the High Court to challenge the sanction imposed by the Board of Enquiry under the rules of the NHA. In order to undertake that enquiry I first consider the grounds advanced by Mr Naidoo in his founding affidavit because it is there that the case sought to be made must be set out. As the Constitutional Court has recently pointed out it is in general not for the reviewing court to seek for grounds of review not relied upon by the applicant.1 That is however subject to one qualification namely that where a point of law is apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is, the court is not only entitled but obliged mero motu to raise the point of law and require the parties to deal therewith. Otherwise the result would be a decision premised on an incorrect application of the law and that would infringe the principle of legality.2 The need for the court to ensure that the parties are afforded a fair opportunity to deal with the point was stressed by the Constitutional Court.3. In particular the court must be satisfied that all the relevant facts necessary to decide the legal point are before it.

[13] In summarising his contentions in the founding affidavit Mr Naidoo claimed that the enquiry violated the principles of natural justice that were applicable to it. As Mr Freund SC, for the appellant, pointed out this language is consistent with the pre-constitutional decisions under the common law in the well-known quartet of cases involving the appellant’s predecessor.4 Those cases held that the relationship between the appellant’s predecessor and jockeys in training is a contractual one and that when disciplinary enquiries are held all that the jockey or trainer is entitled to is a proper hearing in accordance with the principles of natural justice. Even that entitlement may be qualified by the specific provisions of any particular rules applicable to the enquiry.5 Mr Freund contended that the respondent had limited himself to this case and accordingly that the court should confine itself to deciding the case within the principles previously laid down in those authorities.

[14] It seems to me that there are two difficulties in the path of this approach. The first is that in the very same paragraph of the founding affidavit the respondent invoked the provisions of section 39(2) of the Constitution and the court’s obligation to develop the common law by promoting the spirit, purport and objects of the Bill of Rights. Secondly, when dealing specifically with his challenge to the sanction of warning-off the respondent contended that this sanction was “neither justified nor rational in the circumstances”. On several occasions thereafter he complains that the sanction is “unfair and irrational”. That is language appropriate to a review on the grounds of rationality in terms of the provisions of section 6(2)(h) of PAJA6 as construed by the Constitutional Court.7

[15] On the papers therefore there is a substantial degree of uncertainty as to the precise grounds upon which the respondent sought the review of the decision by the Board of Enquiry to warn him off. I do not, however, think it correct to say, as was contended on behalf of the appellant, that the respondent confined his case to one founded on the quartet of Jockey Club cases referred to above. Clearly he did not insofar as he expressly relied on the provisions of section 39 of the Constitution and it is along that route that my brethren conclude, without deciding, that it would not be safe to confine our enquiry to one in terms of the pre-constitutional common law, but should examine the matter on the basis of rationality.

[16] Insofar as the application of PAJA is concerned it is not and never has been a rigid rule that a litigant seeking to rely upon a statute must refer to that statute in the founding affidavit or risk being non-suited. Where a litigant relies upon a statutory provision it is not necessary to specify it provided that it is clear from the facts alleged that the relevant statutory provision is applicable.8 Nor can it be said that the appellant did not anticipate this argument. In the heads of argument delivered in the court a quo on behalf of the respondent the case was specifically advanced on the basis of the principle of rationality enshrined in the Constitution right to fair administrative action and encapsulated in s6(2) of PAJA. In turn that contention was vigorously resisted in the heads of argument on behalf of the appellant. It was not suggested in argument on this aspect of the matter that the appellant would be prejudiced by a consideration of the question of rationality – indeed both in this court and in the court below it was expressly contended that the decision of the Board of Enquiry on sanction met the rationality standard – or that the appellant would have wished to place any further evidence before the court in that regard. It appears that the appellant’s concerns lay elsewhere.

[17] In preparing for this appeal it became apparent to the members of the court that it does not suffice a litigant seeking to challenge a decision such as the present merely to allege that the decision is irrational in respects set out in the application papers and to invoke reliance upon the relevant provision of section 6 of PAJA. There is a basic legal question that has to be answered in that situation before one reaches the question of rationality, namely whether the impugned decision constitutes administrative action as defined in section 1 of PAJA. The relevant portion of the definition reads as follows :

“’Administrative Action’ means any decision taken, or any failure to take a decision, by –

(a) an organ of State, or

exercising their power in terms of the Constitution or a provincial constitution or

exercising a public power or performing a public function in terms of any legislation; or

(b) a natural or juristic person, other than an organ of State, when exercising a public power or performing a public function in terms of an empowering provision,

which adversely affects the rights of any person and which has a direct, external legal effect …”

[18] The appellant is not an organ of State. Accordingly the provisions of PAJA would only be relevant to a review of the decision of the Board of Enquiry if the appellant, as a juristic person, when exercising disciplinary functions in relation to trainers, jockeys and others subject to its rules, is exercising a public power or performing a public function in terms of an empowering provision. The latter expression is defined in section 1 of PAJA as meaning:

“a law, a rule of common law, customary law, or an agreement, instrument or other document in terms of which an administrative action was purportedly taken.”

In the light of these provisions and the relatively sparse reference to them in certain decisions of the Constitutional Court, the parties were requested to address argument on the issue whether the decision in the present case constitutes administrative action in terms of this portion of the definition of that term in PAJA. We had the benefit of full supplementary argument as well as oral submissions from Mr Freund on behalf of the appellant.

[19] The argument on behalf of the appellant accepted that the decision in issue was taken by a juristic person and that it was taken in terms of an empowering provision, that being the Constitution and Rules of the appellant. The focus of the argument on its behalf was that it was not a decision taken “in exercising a public power or performing a public function”.

[20] I trust I do no disservice to Mr Freund’s able argument in summarising it as follows. The appellant is a voluntary association and its constitution and rules have contractual but no statutory effect. Its only jurisdiction is over people who have agreed to be bound by its rules. The appellant accepts that it seeks to regulate the sport of horseracing and the breeding of thoroughbred racehorses in Southern Africa and that it has been substantially successful in that regard.9 In that sense the appellant is a similar institution to the voluntary associations that control other major South African sports

such cricket, football and rugby. Both in South Africa and in England such bodies have always been regarded as being subject to

private, and not public, law.10

[21] The question is whether the activities of the appellant and a Board of Enquiry established by it in terms of its rules constitute the exercise of a public power or the performance of a public function. It was submitted that in enacting this provision the lawgiver must have had in mind decisions such as the Datafin case in England and the pre-constitutional decision by Goldstone J (as he then was) in South Africa in Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange & Others11 and that the lawgiver did not intend to regulate decisions of domestic tribunals regulating sporting activities. Whilst the first

part of this proposition may well be correct I can see no justification for the second part. In Dawnlaan Beleggings there was a statutory background to the private decision-making process of the Johannesburg Stock Exchange.12 In Datafin there was a complete absence of any legislative background whatsoever but from the evidence it emerged that the reason for this was that government had taken a decision that such was unnecessary because of the existence of the Panel on Take-overs and Mergers. In that sense both cases may differ from the present one. However whether the legislature considered those decisions when PAJA was drafted cannot provide any clear indication of the answer to the different question of whether it intended also to include bodies such as the appellant.

[22] I can find nothing in the general language of the definition of administrative action in PAJA that demonstrates a clear intention to exclude sporting bodies that regulate their sport in terms of a constitution and rules. No such exclusion appears from the language itself which propounds a different test of exercising a public power or performing a public function. Sport has a substantial influence in our society and can involve substantial sums of money as well as exercising control over who may earn their living from involvement in sporting activities. Sport raises important public issues as is apparent from the fact that the President has seen fit to appoint commissions of enquiry into both rugby13 and cricket.14 Government has a substantial interest in sport as evidenced by the existence of the department of Sport and Recreation and the creation of the Sports Commission15. Its interest extends to the way in which sports are regulated by sporting bodies. Thus it is recorded in the preamble to the National Sport and Recreation Amendment Act 18 of 2007 that “government has a constitutional obligation to ensure good and responsible governance of sport and recreation in the Republic” and “the administration of sport and recreation in the Republic has been entrusted to sport and recreation bodies” and “sport and recreation belongs to the nation over which government with its elected representatives have an overall responsibility”. Accepting that this is an accurate statement of the position of government and parliament it is difficult to see what distinguishes a national sporting body that regulates its sport from the Take-over Panel that was the subject of Datafin. That is particularly so in regard to a sport of such long-standing as horseracing, which involves very substantial sums of money and generates significant amounts by way of taxes on betting.

[23] The contention that there is a blanket exclusion of sporting bodies from the definition of administrative action is not in my view justified by the wording of the provision or, on a comprehensive basis, by the nature of such bodies. The statutory test is whether they are exercising a public power or performing a public function. It seems to me that when this question arises in relation to specific conduct by a sporting body it requires a close examination of the functions of that sporting body16. There may well be sport organisations operating in relation to relatively minor sports, which have virtually no regulatory powers.

I have in mind sports that attract little public interest, where participation is not dependent on association with the national body and where there is no significant commercial interest. On the other hand larger sporting bodies operating in relation to major sports such as horseracing, football, cricket and rugby stand on an entirely different footing. They exercise a virtually monopolistic control over all aspects of those sports from junior to national levels and are active in the international sphere. Public interest in those sports is massive and the amounts of money generated by these sporting activities are very considerable. A person excluded by one of these sporting bodies from participation in their sport is effectively deprived of their livelihood. I can see no reason why parliament should have overlooked such bodies in enacting the provisions of PAJA much less deliberately excluded them without saying as much.

[24] Lest anything I have said above in general terms about sporting bodies is taken to be an impermissible exercise of judicial notice I point out that the object of the appellant, as set out in paragraph 4.2 of its constitution is to regulate the sport of thoroughbred horseracing in Southern Africa. In terms of clause 5 of its constitution it has all powers necessary to achieve that object. The appellant acknowledges that it has been successful in this aim. This is also evident from a perusal of its rules. In terms of rule 44 racing operators are required to hold licences from the appellant and may only conduct race meetings at race courses specified in their licence and then only subject to the appellant’s rules. In terms of rule 45 licences have to be applied for in respect of race courses and in terms of rule 46 all race meetings must be run under the rules. Those rules are comprehensive as to the race meeting officials; entries; weights; declaration of riders; arrival times of trainers, riders and horses; equipment; starting, running and judging. Every participant in the process requires a licence from the appellant. Thus no one may enter a horse in a race unless they are the current holder of colours which are the registration of the right to race a horse. Under rule 10.2 no one may act as a trainer unless they are licensed to do so. Jockeys and apprentice jockeys must be licensed in terms of rules 20.3 and 17.7 respectively. The penalties imposed on participants found guilty of disciplinary infractions range from substantial fines through

suspension, disqualification of horses and disqualification of persons (warning-off). In terms of appendix F to the rules a suspension or warning-off in South Africa will be implemented in 46 other countries with which the appellant has reciprocity.

[25] It is no surprise that in the English cases dealing with the Jockey Club and similar sporting bodies it was recognised, in the words of Bingham MR (as he then was) in the case involving the Aga Khan, that these are bodies effectively regulating a significant national activity and exercising powers which affect the public and are exercised in the interests of the public. If they did not exist and regulate the activity in question government would probably intervene and create a public body to do so. The decision in those cases that judicial review was not available as a remedy flows, as Hoffmann LJ (as he then was) pointed out17 from the fact that there is no public source for the power of such bodies albeit that they are exercising public powers.

[26] In referring to these English cases it must be borne in mind, as pointed out by Lord Reed in the Court of Session in Scotland18, that this approach by English courts is dependent upon the fact that in England, for historical reasons, judicial review is available only in respect of public authorities. The remedy of certiorari is historically only available to quash decisions by public bodies and judicial review is subject to procedural constraints that are unknown in South Africa19. That is not the case elsewhere, for example, in Scotland which like South Africa is a civilian legal system or in New Zealand or Canada20. What the English courts do recognise is that the powers exercised by these private bodies may be of a public nature and have a public impact. That seems to suggest that in the South African context provided by PAJA they may possibly be regarded as exercising public powers or performing public functions.

[27] These interesting and difficult questions have not been explored, much less determined, in the decisions of our courts. I am satisfied that this is not the appropriate occasion to venture upon that exercise with any degree of finality. The reason is simply that this appeal can be resolved without doing so. However, I decline the appellant’s invitation to determine the case on the basis that the law governing the decision of the Board of Enquiry is confined to the law as stated in the quartet of racing cases on which the appellant relies, unaffected by the constitutional entitlement to fair administrative action and the provisions of PAJA. I have sketched above the functions of the appellant. There seems to me much to be said for the proposition that those are public functions, or involve the exercise of public powers, albeit by a private body, at least insofar as they impinge upon the right of individuals to participate in horseracing and to earn their living therefrom. This case is concerned only with the

question of the exercise of disciplinary powers and not with other matters under the aegis of the appellant and nothing that I have said should be construed as suggesting that every decision by the appellant constitutes administrative action reviewable under PAJA any more than every decision by an organ of state constitutes administrative action.21

[28] I am not persuaded that in interpreting the relevant portion of PAJA our courts are bound to observe the restrictions that are a feature of the English legal system. I also find unpersuasive the contention that monopolistic sporting bodies holding a position of major public importance and exercising “near monopolistic powers in an area in which the public generally have an interest and many persons earn their livelihoods”22 are not performing public functions or exercising public powers, merely because they derive their standing from a constitution and rules adopted by their members.23 In considering these issues there is a substantial body of academic writing on the approach taken in these cases24 which needs to be considered before the English position is adopted in our law. Any consideration must also take account of the

developments in the United Kingdom consequent upon the enactment of section 6 of the Human Rights Act 1998 which renders amendable to review by the courts for breach of the European Convention of Human Rights the actions not only of core public bodies but also of any person in respect of those of their functions that are functions of a public nature.25

[29] In view of my substantial reservations as to the correctness of the appellant’s contention that its legal position remains undisturbed by the passage of PAJA and is governed by the pre-constitutional jurisprudence on which it placed reliance, I prefer to decide this case on the broader basis that the respondent is entitled to challenge the decision of the Board of Enquiry by way of a rationality review under PAJA. I do so expressly without finally deciding that this is indeed the legal position, but on the basis that it is the approach most favourable to the respondent. This approach also renders it unnecessary to consider the alternative approach raised in the founding affidavit that the common law concept of natural justice should be developed in terms of s39 of the Constitution. However I agree with Mr Freund that such an extension poses very considerable problems not least in that it creates the following conundrum. If this type of situation falls within PAJA such an extension is unnecessary. If it does not then if the legislature has not seen fit to bring it within PAJA, what is the basis upon which the court is empowered to give an applicant what are effectively PAJA rights although the case is not within that legislation and where there is no constitutional attack on PAJA as being under-inclusive? There is however force in the reasoning of my brother the Deputy Judge President that such an extension has always been latent in the concept of natural justice and I would guard against being thought to have reached any definite conclusion on this point. On either approach the safe way in which to deal with this case is by accepting that Mr Naidoo raised the question of rationality and assuming that in his favour consider whether the review of the Board of Enquiry’s decision should have succeeded.

[30] In his affidavit the respondent attacked the rationality of the sanction on the following basis. Accepting that the convictions on the two counts of being in possession of prohibited drugs in inordinate quantities and seeking to mislead the Board of Enquiry were justified, he pointed to the following passages in the findings of the Board of Enquiry:

“(22) Mr Naidoo has demonstrated through his conduct in these proceedings, that he is not a man who can be trusted to act with honesty or integrity. It is evident from the facts pertaining to this matter that Mr Naidoo was in possession of very substantial quantities of the substances admitted to in relation to the charge under Rule 10(5)(16)(1) and his persistent refusal to disclose the true purpose for which he had possession of the same, leads to the inescapable conclusion that Mr Naidoo must have been party to malpractice. As we have already observed, he is not willing to assist this Board of Enquiry or the National Horseracing Authority in pursuing any steps which might be taken to eliminate that malpractice.

………….

(25) The only reasonable inference to be drawn from the facts of this matter and from the conduct of Mr Naidoo, is that his admitted possession of the substantial quantities of substances referred to, is one which is attributable to a malpractice within the sport of thoroughbred horseracing in Southern Africa. And his refusal to disclose the truth as to what the malpractice might have been (or might continue to be) leaves this Board of Enquiry with little alternative, other than to impose a penalty which might assist to eliminate that malpractice, namely, a warning-off (which, in practical terms, would be the only penalty capable of eliminating any continuing malpractice on an effectual basis). Any lesser penalty would not preclude Mr Naidoo from being on a racecourse, and from attending licensed premises (including training yards).”

[31] Mr Naidoo developed his complaint in the following way. Apart from the two offences on which he had been convicted, the Board also held the view that he was guilty of some other unspecified malpractice that had never been put to him. This malpractice, so he inferred, could only have been the offence of administrating prohibited substances to his horses and that is an entirely separate offence under Rule 73(1), with which he had not been charged and of which he had not been convicted. Accordingly, so he contended, the sentence was irrational and unwarranted because it was dependent entirely on his being guilty of this unstated malpractice.

[32] There is in my view no merit in this argument. There was no evidence whatsoever before the Board to suggest that Mr Naidoo’s possession of the substantial quantities of prohibited drugs could have been for anything other than an improper purpose. In the debate over sanction he was repeatedly asked to assist the Board by telling it the basis upon which he had possession of those quantities of drugs. It was made clear to him that the only inference that could be drawn from his possession of such a substantial quantity of drugs and his dishonest explanations for that possession must inevitably lead to an inference that they were to be used for an improper purpose. That purpose was not necessarily the doping of his own horses. It could have been that he was generally making these drugs available to others in the horseracing industry. Alternatively he could have been making them available to an unlicensed veterinarian. These are but two possibilities that spring to mind. In the absence of disclosure on his part the inference that his possession of them had been for some or other improper purpose connected with horseracing was overwhelming. In addition, considering the period during which the drugs had been acquired, at the time of the hearing before the Board of Enquiry the position must have been that the drugs had been used or disposed of. The respondent’s failure to give any credible explanation for that and his persistence in dishonest explanations could only lead to the inference that the purpose for which they had been acquired and used was improper in relation to the sport of horseracing.

[33] In the circumstances the inference drawn by the Board of Enquiry was not only rational but inevitable and no reasonable Board of Enquiry could have held otherwise. It did not involve condemning the respondent on a charge that he had not faced. What it did was to draw the reasonable and rational inference from the charges that he had faced and been found guilty of and those inferences guided the Board of Enquiry in determining an appropriate sanction. That there had been a malpractice in relation to these drugs was a seriously aggravating feature of the respondent’s conduct.

[34] It is hardly surprising in the face of this that Mr Beharie, who appeared for the respondent in the appeal did not seriously pursue this argument. Instead he sought to raise two other arguments. The first was an endeavour to resuscitate the respondent’s complaint at the outset of the hearing before the Board of Enquiry that its constitution, and particularly the fact that it consisted of three white males, was inherently prejudicial to his interests. There are two difficulties with this contention. The first is that this was never raised in the application papers. This alone is fatal to its success in this appeal but I will nonetheless deal briefly with the second. Whilst raising this objection the respondent did not indicate how a board of enquiry could be composed so as to satisfy him. Would it only have been acceptable had it consisted of three persons of colour or did he require it to be composed of three persons drawn from the same group as himself in South African society? What kind of mixed constitution would have been acceptable to him? Were this type of objection sound then it would be an everyday occurrence in our courts that parties

appearing before them could seek the recusal of the judicial officers appointed to hear a case on the basis of their membership of one or other racial group. One need only contemplate that possibility for a moment in order to see that the contention is untenable. The neutrality of a court or a board of enquiry, such as that constituted by the respondent, or any similar tribunal is not dependent on the racial group from which its members are drawn but on their actual impartiality in dealing with the issues before them.

[35] The second point advanced by Mr Beharie was a contention that the proceedings before the Board of Enquiry were procedurally unfair because at the end of the hearing on sanction the respondent’s then attorney advanced a new version, acting on instructions obtained in response to the Board of Enquiry’s repeated suggestions that it would be helpful for the respondent to tell them what had in fact been the purpose for which he had acquired the drugs. As he had done throughout the hearing on sanction the respondent did not seek to support that version by way of evidence on oath that could be the subject of investigation and cross-examination. The contention advanced before us, however, was that the Board of Enquiry should mero motu have adjourned the proceedings in order to investigate this new version.

[36] In my view there is no substance in this contention. The new version sought to blame Mr Sahd for the respondent’s difficulties by suggesting that the drugs had been obtained for his purposes. Not only could this have been put to Mr Sahd when he gave evidence but it was unsupported by any reason why Mr Sahd should have wanted that quantity of drugs and also not supported by evidence from the respondent. The respondent had ample opportunity to give evidence in relation to this version but had not taken the opportunity to do so. Whilst raised at the eleventh hour it is likely, bearing in mind their general approach, that the Board of Enquiry would have allowed him to place this version on record by way of evidence had he wished to do so. To suggest that it should itself have adjourned already protracted proceedings in order to investigate this new version by the respondent goes too far. The contention that the proceedings were procedurally flawed must accordingly be rejected.

[37] In the court below it was the contention based upon misconduct that founded the learned judge’s decision. For the reasons I have given that was erroneous and the other grounds advanced before us are equally without merit. In the circumstances the appeal must be upheld with costs and, for the assistance of the Taxing Master, I record that in my view it was proper for the appellant to employ the services of senior counsel. The order of the court a quo must be altered to one dismissing the application with costs, such costs to include those consequent upon the employment of two counsel.

DATE OF HEARING 3 FEBRUARY 2009

DATE OF JUDGMENT 23 FEBRUARY 2009

APPELLANT’S COUNSEL MR A.J. FREUND S.C.

APPELLANT’S ATTORNEYS BELL DEWAR & HALL

CORRESPONDENTS TATHAM WILKES

RESPONDENT’S COUNSEL MR N. BEHARIE

RESPONDENT’S ATTORNEYS VICKE PERSADH

1 CUSA v Tao Ying Metal Industries & Ors [2008] ZACC 15 para 67[2008] ZACC 15; ; 2009 (1) BCLR 1 (CC) at 20-1.

2 Ib paras [68] and [131]

3 It is helpfully dealt with in somewhat greater detail in the recent judgment of the Singapore Court of Appeal in Pacific Recreation Pte Ltd v SY Technology Inc & Another [2008] SGCA 1; 2008 (5) CLR 153, paras [28] to [33]

4 Marlin v Durban Turf Club & Ors 1942 AD 112; Jockey Club of SA & Ors v Feldman 1942 AD 340; Turner v Jockey Club of SA 1974 (3) SA 633 (A) at 646 F-G; and Jockey Club of SA v Forbes [1992] ZASCA 237; 1993 (1) SA 649 (A)

5 Bekker v Western Province Sports Club 1972 (3) SA 803 (C) at 812B-813H.

6 Promotion of Administrative Justice Act 3 of 2000.

7Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & Ors [2004] ZACC 15; 2004 (4) SA 490 (CC), paras [43] – [45]; Sidumo & Another v Rustenburg Platinum Mines Ltd & Others 2008 (2) SA 24 (CC), para [110].

8 Ketteringham v City of Cape Town 1934 AD at 90; Bato Star, supra, para [27].

9 It is, however, open to others to seek to establish rival associations, although it is not suggested that they have done so.

10 In addition to the quartet of cases already referred to reference was made in South Africa to other cases involving the Jockey Club and to the case of Cronje v United Cricket Board of SA 2001(4) SA 1361 (T) at 1376. In regard to England reliance was placed upon the cases of R v Football Association Ltd v Football League Ltd [1993] 2 All ER 833 (QBD) at 848-849; Law v National Greyhound Racing Club Ltd [1983] EWCA Civ 6; [1983] 3 All ER 300 (CA) at 303 and 307; R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 2 All ER 8 (CA) and R v Take-overs and Mergers, ex p Datafin plc (Norton Opax plc intervening) [1997] 1 All ER 564 (CA).

11 1983 (3) SA 344 (W)

12 The same is true of the recent Constitutional Court decision in AAA Investments (Pty) Ltd v Microfinance Regulatory Council [2006] ZACC 9; 2007 (1) SA 343 (CC).

13 This became the subject of the litigation in President of the Republic of South Africa and others v South African Rugby Football

Union and others 1999 (2) SA 14 (CC) and 2000 (1) SA 1 (CC).

14 Cronje v United Cricket Board of SA 2001(4) SA 1361 (T), para 10 at 1369.

15 In terms of the National Sport and Recreation Act 110 of 1998.

16 This accords with the principle that it is the function and not the functionary that determines whether particular action constitutes administrative action. President of the Republic of South Africa and others v South African Rugby Football Union and others 2000 (1) SA 1 (CC) para 141, although the court may have gone beyond that in Sidumo & Another v Rustenburg Platinum Mines Ltd & Others 2008 (2) SA 24 (CC), paras [81] to [88] and [130] to [139]. In the latter paragraphs O’Regan J appears to have adopted an approach of examining whether it is “constitutionally suitable to impose the requirements of s 33 (of the Constitution)” on a body performing arbitral functions relating to the validity of a dismissal. It is difficult to see how the quasi-judicial functions of a disciplinary tribunal under the appellant’s rules differ in the way it must function or in the effect of its decisions from the CCMA.

17 In the Aga Khan case at 873.

18 Crocket v Tantallon Golf Club [2005] CSOH 37, para 30.

19 See the discussion of certiorari in Craig, Administrative Law, (5th Ed), 755 -757 and Chapter 23 from 788 and in Wade & Forsyth, Administrative Law, (9th Ed) 602- 615

20 Wade & Forsyth, supra, 645.

21 Chirwa v Transnet Ltd [2007] ZACC 23; 2008 (4) SA 367 (CC) at paras [139] to [150] and [186] to[194].

22 Ex p Massingburd-Mundy [1993] 2 All ER 207 (DC) per Neill LJ.

23 For someone who wishes to participate in the industry as a trainer or jockey these are contracts of adhesion. c/f Barkhuizen v Napier 2007 95) SA 323 (CC), paras 135 to 156.

24 See Woolf et al, De Smith’s Judicial Review (6th ed), paras 3-041-3-055; Wade & Forsyth, Administrative Law, (9th ed) 644-645; Craig, Administrative Law (9th ed), 814-817 and 821; Anderson, “An Accident of History; Why the Decisions of Sports Governing Bodies are not Amenable to Judicial Review” (2006) 35 Common Law World Review 173 and David Pannick QC (now Lord Pannick of Radlett and one of the leading English lawyers in the field of administrative law), “Judicial Review of Sports Bodies” [1997] JR 150. For a South African perspective see Cockrell, 1993 Acta Juridica, 27. Professor Hoexter is sceptical of the decision in Cronje v United Cricket Board of South Africa as are the authors of the note in 2001 Annual Survey 81 at 116.

25 Accepting that functions of a public nature and the performance of public functions are much the same the evolving jurisprudence in this regard may well prove illuminating in South Africa. See in this regard the decisions in Y.L. (by her litigation friend, the Official Solicitor) v Birmingham City Council [2007] UKHL 27, [2007] 3 All ER 957 (HL) and R (on the application of Weaver) v London and Quadrant Housing Trust [2009] 1 All ER 17 (DC). See also Wade & Forsyth, supra, 176-7 and De Smith, supra, 3-075 to 3-087.