About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2016
>>
[2016] ZASCA 108
|
|
SA Hackney Pony Breeders' Society and Another v Majiet (131/2015) [2016] ZASCA 108 (31 August 2016)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 131/2015
In
the matter between:
THE
SA HACKNEY PONY BREEDERS’ SOCIETY
FIRST
APPELLANT
THE
SA STUD BOOK AND ANIMAL
SECOND
APPELLANT
IMPROVEMENT
ASSOCIATION
and
ADAM
MAJIET
RESPONDENT
Neutral
citation:
The
SA Hackney Pony Breeders’ Society v Majiet
(131/2015)
[2016] ZASCA
108
(31 August 2016)
Coram:
Cachalia,
Seriti and Mocumie JJA and Fourie and Potterill AJJA
Heard:
15
August 2016
Delivered:
31
August 2016
Summary:
Review: Whether
cross-breed of hackney horse and hackney pony eligible for
registration as hackney pony: Interpretation of breeders’
society’s constitution and by-laws: Application of Animal
Improvement Act 62 of 1988.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Cossie AJ sitting as
court of first instance):
(i)
The appeal in the review is upheld with costs including the costs of
two counsel;
(ii)
The appeal against the costs order in the interdict application is
dismissed
with costs;
(iii)
The costs order against the second appellant is set aside;
(iv)
The order of the court a quo is set aside and the following order is
substituted in its
place:
‘
(a)
The application is dismissed with costs, including the costs of two
counsel;
(b)
the costs in the interdict application are to be paid by the first
respondent.’
JUDGMENT
Cachalia
JA (
Seriti
and Mocumie JJA and Fourie and Potterill AJJA
concurring)
[1]
This is an appeal against an order of the Western Cape High Court,
Cape Town (Cossie AJ), reviewing and setting aside a decision
by the
second respondent, the SA Stud Book and Animal Improvement
Association (the Association), to deregister an equine named
‘Fire
High Explosive’ (FHE) and four of its progeny. The decision was
made upon a recommendation of the SA Hackney
Pony Breeders’
Society (the Society), which is a member of the Association. Mr Adam
Majiet is the owner of the equines,
a member of the Society and the
respondent in these proceedings. He successfully instituted the
review proceedings in the court
a quo after FHE was deregistered. He
now opposes the appeal.
[2]
The Society recommended FHE’s deregistration after DNA results
indicated that only one, not both, of its parents was a
hackney pony.
The other was a hackney horse, which is a different breed. This
means, according to the Society, that FHE and its
progeny are
cross-breeds. The equine is therefore ineligible for registration as
a hackney pony in terms of the Society’s
constitution and its
by-laws, which require both parents of an equine to be hackney
ponies. The Association accepts this requirement,
hence its decision
to deregister FHE upon the Society’s recommendation.
[3]
The Association, however, abides the decision of the court because it
has no knowledge of the facts that gave rise to FHE’s
deregistration. But it makes clear in its answering affidavit that if
the Society is correct in its assertion that the registration
certificate wrongly states FHE’s parentage, it is enjoined to
remove the equines registered as hackney ponies in the stud
book,
which the Association keeps in its custody. It adopted this stance in
the court a quo and has maintained it since.
[4]
Mr Majiet disputes the Society’s contention that its
constitution and by-laws require hackney ponies to be descendant
of
two registered hackney ponies. He contends that they only require the
equine to have the phenotypical characteristics, ie, the
appearance,
of a hackney pony for registration, which FHE has. The genotypical
characteristics determined from DNA testing do not
supersede its
phenotypical characteristics. Moreover, he argues, the Society has
not established a particular DNA gene profile
for a hackney pony and
therefore cannot deny registration on this ground. Finally, he
contends that the DNA report that was used
to deregister FHE was
obtained improperly and that its contents are unreliable.
[5]
I turn to the facts. FHE was born on 8 March 2005 and bred by the
past President of the Society, Mr Dawood Davids. He sold FHE
to Mr
Majiet, apparently assuring him at the time that the animal was a
hackney pony. The date of the sale is unclear, but nothing
turns on
this.
[6]
The registration certificate issued on 19 May 2010 from information
Mr Davids provided to the Association indicates that FHS
was
registered as a hackney pony. The certificate records the equine’s
sire as
Retcharnis
Modernaire
and
its dam as
Fire
Carnation.
It
is common ground that both these animals are hackney ponies. A DNA
number for FHE also appears on the document.
[7]
In response to a query from one of the Society’s members, Mr
George Bell, regarding FHE’s parentage and at his instance,
an
independent testing agency, Unistel Medical Laboratories (Pty) Ltd
(Unistel) carried out DNA tests on FHE in 2011. It found
that there
was a perfect match between a hackney horse stallion, (which is not a
hackney pony) named
Retcharnis
Field’s Pride
,
and
Fire
Carnation
as
the biological parents of FHE. On the basis of this report,
therefore, the Society concluded that FHE’s registration
certificate
had incorrectly recorded
Retcharnis
Modernaire
–
a hackney pony – as the sire whereas in truth the sire was
Retcharnis
Field’s Pride
,
a hackney horse.
[8]
A meeting of the Society’s executive committee was held on 3
October 2011 to discuss the issue. Mr Sayed Davids, Mr Dawood
Davids’
successor and the current President of the Society, Mr Bell and Mr
Dawood Davids were present. It bears mentioning
at this stage that
the two Davids and Mr Majiet are all related to each other.
[9]
Mr Sayed Davids is the deponent of the Society’s answering
affidavit, and it is therefore on his factual averments that
the case
is to be decided. He explains what transpired at this meeting: Mr
Bell handed a copy of a DNA parentage certificate of
FHE to Mr Dawood
Davids indicating that
Retcharnis
Modernaire
was
not the sire. Mr Dawood Davids, he explains further, looked at
the document for what felt like an inordinate amount of
time during
which there was a hushed silence. And then, without looking up he
said: ‘If this is so, then this horse needs
to be scrapped.’
[10]
The meeting then decided that three members of the executive
committee, including Mr Sayed Davids himself, would establish
from
Unistel whether the DNA parentage certificate was reliable. Mr Sayed
Davids says that Mr Dawood Davids looked uncomfortable
and left
abruptly at the end of the meeting with the certificate in hand.
[11]
The three members proceeded to Unistel and met with Dr Oosthuizen,
who had done the DNA testing. He explained to them how the
testing
had been done. They left the meeting ‘completely satisfied’
that the results were in order. On 4 October
2011 Dr Oosthuizen
confirmed his findings regarding FHE’s parentage in a written
note, which indicated a perfect match of
Retcharnis
Field’s Pride
,
the hackney horse, and
Fire
Carnation
as
FHE’s biological parents.
[12]
Having satisfied themselves that Dr Oosthuizen’s findings were
reliable, the committee called Mr Dawood Davids to
a Special
Council Meeting on 22 October 2011 to explain the discrepancy between
these findings and FHE’s parentage, as appears
from the
certificate. Mr Dawood Davids did not question the findings. Instead,
he sought to exonerate himself by explaining that
he had not
deliberately falsified the records. His brother had worked with the
equines and he (Mr Dawood Davids) had personally
observed him mating
the two ponies. He therefore believed that FHE’s certificate
had correctly stated the equine’s
parentage. But, he explained
further, what may have happened was that the stallion –
Retcharnis
Field’s Pride –
had broken into
Fire
Carnation’s
pen
and sired FHE without his knowledge. The meeting accepted the
explanation and acquitted him of any deliberate wrongdoing.
[13]
On 17 December 2011 the Society held another meeting at which Mr
Dawood Davids, who was still the President, presided. The
issue
relating the equine’s parentage arose again. There is a dispute
between the parties as to whether this was a properly
constituted
Annual General Meeting (AGM). It appears that members who were
present were asked to vote on a proposal by Mr Dawood
Davids for FHE
to be allowed to remain registered as a SA Hackney Pony. The proposal
was carried by a majority of two-thirds of
the members present.
[14]
A few days later Mr Sayed Davids delivered a letter to Mr Dawood
Davids complaining that the meeting had been improperly convened
and
conducted, and requested him to reconvene another AGM. The letter
also invited Mr Dawood Davids to agree to the appointment
of an
independent person to chair an enquiry into the ‘parentage
dispute’ of FHE. The letter went on to urge Mr Dawood
Davids to
deal with these matters before 6 January 2012 failing which the
matter would be referred to the Registrar of Animal Improvement
under
the Animal Improvement Act 62 of 1998 (the Act) to consider taking
appropriate steps to deal with the issues referred to
in the
letter.
[15]
Mr Dawood Davids did not react to the letter. On 25 January 2012 a
petition signed by all the other members of the executive
committee,
and also more than two thirds of the breeders, informing him that
they intended passing a vote of no-confidence in him
as President at
the following meeting, was delivered to him. In response Mr Dawood
Davids resigned as President of the Society.
His resignation was
formally accepted on 28 February 2012 and Mr Sayed Davids was later
appointed as President in his place. At
the same time the Registrar
directed that the relevant certificates and documents relating to FHE
and its foals be forwarded to
the Stud Book Office for cancellation.
[16]
On 8 May 2012 the Society notified Mr Majiet of its intention to
request the Association to cancel the registration certificate
issued
to FHE and its progeny on the following grounds:
(a)
the parentage details given for FHE before registration were
incorrect, as the DNA certificate
confirmed;
(b)
the parentage information revealed that FHE is in fact a cross-bred
foal of a hackney horse
and a hackney pony and not of two hackney
ponies as Mr Dawood Davids had represented; and
(c)
being a cross-breed, FHE did not comply with the requirements for the
registration
of hackney ponies.
[17]
Mr Majiet was afforded the opportunity to make representations to the
Society in accordance with its constitution before a
final decision
regarding FHE’s deregistration was made. On 7 June 2012 he
submitted detailed representations to the Society
on why his equine
should not be deregistered.
[18]
In summary he explained that when he purchased FHE from Mr Dawood
Davids the latter assured him of FHE’s pedigree, and
that he
was unaware of any problems with its parentage. He also questioned
the reliability of the DNA report and the process by
which it had
been obtained. Importantly, he argued that the mating of a hackney
horse with a hackney pony ‘should not automatically
result in
the ineligibility of its offspring as hackney ponies and automatic
deregistration of such foals and any future offspring
generations’.
This is because, he asserted, the real test was whether the equine in
question bore the phenotypical characteristics
of a hackney pony,
which FHE did. The DNA results were therefore of secondary
importance.
[19]
Three days after he had submitted his representations to the Society,
he was informed that its executive committee had decided
that FHE and
its foals were ‘to be scrapped’ under the relevant
provisions of the Society’s constitution. On
10 July 2012 the
Society cancelled the registration of FHE and its foals as hackney
ponies. And, acting on the Society’s
request, the Association
followed suit by also deregistering the equines.
[20]
On 24 December 2012, Mr Majiet instituted review proceedings in the
court a quo to set aside the decision to deregister his
equines. On
14 January 2013, the Society suspended him pending the outcome of the
review application. He was ordered to attend
an executive committee
meeting of the Society the following day, when his suspension was
confirmed.
[21]
On 11 March 2013 Mr Majiet instituted an urgent application to
interdict the Society from giving effect to the suspension.
The
application was settled with the suspension being lifted and costs
were left over to be argued in the review. As I indicated
earlier
Cossie AJ upheld the review. She also ordered the Society and the
Association to pay the costs of both the review and interdict
applications.
Grounds
of Review
[22]
Mr Majiet, represented by senior counsel, advances three grounds upon
which he contends that the decision to deregister FHE
was unlawful.
First, the relevant provisions of the Society’s constitution
and its by-laws do not require a hackney pony
to be descendant of two
fully registered hackney ponies; he submits that a foal of a
registered hackney pony and a hackney horse
that meets the
phenotypical characteristics (the appearance) of a hackney pony is
eligible for registration; secondly, the DNA
report that established
that one of the parents of FHE –
Retcharnis
Field’s Pride
–
was a hackney horse and not a hackney pony, was not reliable and
therefore did not provide a proper basis for FHE’s
deregistration; and thirdly, the deregistration of FHE was not
effected fairly. Before I consider each of these grounds it is
necessary to set out the legal framework.
The
Legal Framework
[23]
The legal framework within which the Society is required to function,
and to which its members are bound, is to be found in
the Act, the
Society’s constitution and its bye-laws. If the Society acted
outside of these parameters in causing FHE’s
deregistration, it
would have done so unlawfully and any decision made pursuant thereto
would be reviewable and fall to be set
aside.
[24]
The Act provides for the ‘breeding, identification and
utilisation of genetically superior animals to improve the production
and performance of animals’. And s 11(1)
(c)
provides as follows:
‘
11
Animal breeders' society
(1)
A group of persons may be registered as an animal breeders' society
if-
.
. .
(c)
the constitution of
such group of persons specifically provides-
(i)
for the promoting, breeding, recording or registration, genetic
improvement
and use of a kind of animal or an animal of a specified
breed of such kind of animal;
(ii)
for the determination and the application of breed standards, and for
the recommendation,
in its sole discretion, to a registering
authority of the recording or the registration of an animal or of a
specified breed bred
or imported into the Republic;
.
. . .’
[25]
The Association’s answering affidavit, deposed to by its
general manager, Mr van Rooyen, in summary, explains its
role
and function in the Act as follows: First, it acts as the official
registering authority of most animal breeders’ societies
in
South Africa; secondly, it is the custodian of the stud books of the
breeders’ societies for whom the Association acts
as
registering authority. Stud books contain information about the
breeder and every animal he or she has bred and submitted for
recording. The information includes the name, identification, date of
birth and parentage of the animal. Thirdly, it issues official
registration certificates in relation to all animals registered in
these stud books in terms of the constitutions of the relevant
breeders’ societies, as proof of the pedigree of each animal.
[26]
Mr van Rooyen explains further that it is imperative for stud books
to contain accurate information on each animal so that
the objectives
of the Act mentioned above are achieved. The Association, as the
registering authority, is dependent on the receipt
of this
information from breeders’ societies and their members. And to
this end the societies must have proper procedures
in their
constitutions and bye-laws to ensure that the parentage details of
animals provided by their members are correct so that
they may be so
recorded in the stud book.
[27]
Mr van Rooyen emphasises that the onus for providing accurate
information is thus the sole responsibility of the breeder who
must
ensure that the pedigree, breeding particulars and permanent
identification marks of animals described in their birth
notifications
are correct and that all the requirements of the
constitution relating to birth notifications, have been complied
with. Mr Majiet
did not contest any of these assertions, in my view
correctly so.
[28]
The regulations made under the Act also bear some importance in this
case.
[1]
Table 7(b) of the
regulations categorises the ‘locally adapted and regularly
introduced breeds’ for cattle, goats,
horses, sheep and pigs.
In the list of breeds for horses, hackney horses and hackney ponies
are specified as different breeds.
It follows that if a hackney horse
mates with a hackney pony their offspring would be a cross-breed,
which according to the Society,
precludes its registration as a
hackney pony.
[29]
This brings me to the Society’s constitution. The objects and
powers of the Society as set out in the relevant parts
of clause 2
include the following:
‘
2.1
to encourage the breeding and genetic improvement of SA Hackney
Ponies in the Area;
2.2
to preserve the pure breed of the SA Hackney Ponies in the Area and
to promote through all
possible and available means interest in the
breed;
2.3
to accumulate, preserve and develop the SA Hackney Ponies through
proper selection in accordance
with the acceptable description of a
SA Hackney Pony and to eliminate cross-breeding;
2.4
to draft and maintain a ‘Standard of Excellence’ for the
breed, based on visual
inspection for genetic defects and conformity
as it relates to functional efficacy.
2.5
to compile accurate records of studbooks and particulars of horses
and to preserve and maintain
the records of all SA Hackney Ponies
that the Society has registered with the Association.’
[2]
(My translation)
[30]
By-law 1, which is critical to the resolution of the present dispute,
says the following regarding the importance of the Association’s
stud book:
‘
1.
The Society shall take care that the Association keeps a record of
all registered SA
Hackney Ponies. The stud book will be known as the
South African Hackney Pony Studbook and will consist of a Fully
Registered Section.
All progeny of fully registered horses of the
breed are eligible for registration in this Section if the progeny
meet the minimum
breed standards and all the other requirements for
registration.’
[3]
(My translation)
[31]
It is appropriate at this stage to deal with Mr Majiet’s first
ground of review which is that it was not necessary for
FHE to be
descendant of two fully registered hackney ponies and that it was
eligible for registration as a hackney pony by virtue
of its
appearance. He contends that the wording of this by-law supports his
interpretation. In particular, he submits that the
word ‘all’
(‘alle’) at the commencement of the second sentence
suggests that all
horses
are eligible for registration if the minimum breed standards are met,
especially because the constitution and the by-laws do not
set such
standards. In addition the use of the word ‘horse’
instead of pony also suggests that it is sufficient for
a foal to be
registered if one its parents is a hackney horse. Had the by-law
aimed to limit registration only to the descendants
of two fully
registered hackney ponies, the contention continues, it would have
used the word ‘only’ (‘slegs’)
instead of
‘all’. Moreover clause 2.4 of the constitution provides
that the ‘standard of excellence’ for
the breed is based
on a visual inspection for genetic defects, which means that it is
sufficient for the equine to have the appearance
of a hackney pony in
the absence of any other breed standards.
[32]
There is no merit in this submission: First, the by-law, which
concerns the stud book, must be read as a whole without excising
the
second sentence, as Mr Majiet seeks to do. It concerns only the
registration of hackney ponies – not hackney horses
– in
a fully registered section. The second sentence makes it equally
clear that the progeny of fully registered hackney
ponies may be
registered in the stud book. The use of the word ‘all’
instead of the word ‘only’ is in my
view of no
significance, and does not expand the category of breed eligible for
registration beyond hackney ponies. The word ‘horse’
in
the second sentence, read with the definition of ‘horse’
in s 1 of the constitution,
[4]
also makes clear that this refers to a hackney pony ‘registered
in the stud book or eligible therefor.’
[33]
Secondly, in seeking to persuade us that the constitution only
requires the equine to meet the phenotypical requirement for
hackney
ponies, Mr Majiet again seeks to excise clause 2.4 of the
constitution and read it in isolation by ignoring the other clauses
quoted above. Clauses 2.1 to 2.3 show conclusively that they are
concerned with the ‘breeding and genetic improvement of
hackney
ponies’, their preservation as a ‘pure breed’ and
to eliminate ‘cross breeding’. And clause
2.5 deals with
the maintenance of accurate records of hackney ponies in stud books.
Read together with these clauses it is clear
that the ‘visual
inspection’ for genetic defects referred to in clause 2.4
is only one consideration among others
in preserving the ‘pure
breed’ and eliminating the ‘cross-breed’. And as
Table 7(b) of the regulations
also makes clear hackney ponies and
hackney horses are different breeds. So mating between them will give
rise to foals that are
cross-bred and undermine the Society’s
constitutional objectives and s 11 of the Act, which are aimed at
eliminating this
phenomenon.
[34]
The third reason why this submission must fail appears from Mr van
Rooyen’s affidavit: He says that the breeder of a
hackney pony
is obliged to notify the Society of the birth of the equine. The
notification must be accompanied by a mating certificate
confirming
the date or dates of the mating of the sire and dam. In the case of
multiple sire mating (where one dam could have been
covered by more
than one stallion as appears to have happened in this case) the
notification of birth must be accompanied by verification
of
parentage through DNA results. This is not disputed.
[35]
If Mr Majiet is correct that all that is required for an equine to be
eligible for registration is to have the appearance,
colours and
temperament of a hackney pony – in other words look like a
hackney pony – this would mean that it would
not be necessary
for a breeder to notify the Society of the birth and parentage of the
equine, because a newly born foal would
evidently not demonstrate any
of the characteristics of a hackney pony at birth. All the breeder
would have to do is to wait until
the equine grows into adulthood and
only then to register it if it exhibits the characteristics of a
hackney pony. This would be
completely at odds with what I have
stated in the previous paragraph relating to the breeder’s
obligation to notify the Society
of the birth of the equine. Counsel
for Mr Majiet was unable to provide a coherent response for this
difficulty during the hearing.
[36]
I turn to Mr Majiet’s second complaint, which is that the DNA
report that established that one of the parents of FHE
–
Retcharnis Field’s Pride
– was a hackney horse and
not a hackney pony, was not reliable and therefore did not provide a
proper basis for FHE’s
deregistration. It appears from Mr van
Rooyen’s affidavit that DNA testing to confirm the parentage of
particular animals
is used frequently because of its reliability. In
the Western Cape, Unistel does the testing. The Society’s
constitution
and its by-laws make specific provision for DNA testing.
By-law 2 deals with confirmation of parentage of hackney ponies:
‘
11.1
The Society reserves the right to at any time require a DNA test or
any other proven scientific method of
proof of parentage in order to
determine the parentage of a registered horse or a horse eligible for
registration:
(a)
as a routine procedure from time to time as determined by the
Association;
(b)
in any matter where there is doubt;
(c)
. . .
11.2
When a DNA test is done in terms of by-law 11(1)(a) the breeder shall
be held responsible for all the
costs of a second and further
parentage control tests.
11.3
The costs of a DNA test done in terms of by-law 11(1)(b) shall be
borne by the breeder or the Society
as determined by the Board.
11.4
For the purposes of the parentage control of all breeding stallions
DNA testing is peremptory notwithstanding
anything contained
above.’
[5]
(My translation)
[37]
It is apparent from the factual background set out earlier that when
confronted with the DNA certificate Mr Dawood Davids did
not contest
its correctness. He maintained that he believed that FHE’s
parentage was correctly stated but conceded that what
may have
happened was that the stallion –
Retcharnis
Field’s Pride –
had broken into
Fire
Carnation’s
pen
and sired FHE without his knowledge. As a result he innocently
conveyed incorrect information to the Society regarding FHE’s
parentage. Later on Mr Sayed Davids and two other members of the
Society’s executive committee visited Unistel to satisfy
themselves that the findings were reliable. Dr Oosthuizen, who
prepared the DNA report, stated its reliability to be in the order
of
99.994 per cent.
[38]
In his reply Mr Majiet filed an affidavit from Dr Cindy Harper, who
is a Director of a genetics laboratory. She explained that
best
practice regarding DNA testing must be managed according to what she
referred to as the ‘chain of custody principle’
from the
time the animal is tested until the evidence bag reaches the
laboratory. She does not however dispute Dr Oosthuizen’s
finding. In the circumstances, and applying the rule regarding
evidence in application proceedings, this matter must be decided
on
the basis of the undisputed facts in the answering affidavits. In any
event Mr van Rooyen emphasises that the onus for providing
accurate
information on the equine is the sole responsibility of the breeder.
This is consistent with s 11.1(b) of by-law 2.
[39]
So to the extent that there is any doubt regarding the reliability of
Dr Oosthuizen’s DNA report, which I cannot
see, the onus
was first on Mr Dawood Davids and thereafter on Mr Majiet to prove
that the information given by Mr Dawood Davids
to the Society
regarding FHE’s parentage was correct. Mr Davids did not
dispute the DNA report when he was confronted with
it or any time
thereafter. Mr Majiet could have proved that FHE was not a
cross-breed at the time he made representations
to the Society or in
the founding papers in the review application, if he had wished to.
He did not. In fact his principal argument
in this case is that FHE
qualifies for registration as a hackney pony despite the fact that it
is a cross-breed. So his complaint
regarding cancellation of FHE’s
deregistration under by-law 21
[6]
is entirely without any foundation.
[40]
I turn to Mr Majiet’s final submission: that FHE’s
deregistration was not effected fairly. In the hearing before
us the
court invited counsel, who appeared on behalf of Mr Majiet, to point
out where this case was made out in the founding papers;
he was
unable to do so. Mr Dawood Davids was confronted with the DNA report
and was not able to challenge it. Mr Majiet was afforded
an
opportunity to make representations before a final decision on the
deregistration was taken. He submitted a lengthy document
that the
Society considered before taking the final decision to deregister
FHE. Counsel for Mr Majiet was therefore constrained
to accept that
he was given a proper hearing before the decision was taken.
[41]
What remained was an argument that the DNA report was not obtained
through a fair process. There is no factual basis for this
contention. It was accepted before us that Mr George Bell, one of the
Society’s members, procured the DNA report from Unistel,
apparently because he was unhappy that FHE’s impressive
appearance seemed to give it an unfair advantage over other hackney
ponies in competitions. That report was handed to the Society, which
then acted on it, as it was obliged to. The Society did not
procure
the DNA report in an underhand or improper manner. There is therefore
no substance in this complaint either.
[42]
One must feel some sympathy for Mr Majiet who purchased an animal
from Mr Dawood Davids on his assurance that it was a hackney
pony.
What is more, Mr Davids gave him the documentary proof, which
later turned out to be incorrect. So to the extent that
Mr Majiet has
a legitimate complaint and possibly a cause of action against anyone,
it is against Mr Davids, and not the Society.
For these reasons,
the review must fail.
[43]
I turn to the question of costs. As the Society has been successful
in the appeal against the order of the court a quo regarding
the
review it is entitled to its costs. The parties also accept that the
court a quo erred in granting a costs order against the
Association,
despite it not having opposed the review. That part of the order must
also be set aside.
[44]
The Society also appeals against the costs order in the interdict
that was settled on the basis that Mr Majiet’s suspension
as a
member was lifted with the question of costs to be decided with the
review. The Society maintains that each party should pay
its own
costs in the interdict because Mr Majiet had acted unreasonably in
not agreeing to mediate the dispute. It is, however,
the Society, not
Mr Majiet, that acted unreasonably by suspending him after he had
launched review proceedings, only to capitulate
later by lifting his
suspension. Mr Majiet is therefore entitled to the costs incurred in
the interdict, but not to the costs of
two counsel.
[45]
In the result the following order is made:
(i)
The appeal in the review is upheld with costs including the costs of
two counsel;
(ii)
The appeal against the costs order in the interdict application is
dismissed with
costs;
(iii)
The costs order against the second appellant is set aside;
(iv)
The order of the court a quo is set aside and the following order is
substituted in its
place:
‘
(a)
The application is dismissed with costs, including the costs of two
counsel;
(b)
the costs in the interdict application are to be paid by the first
respondent.’
_______________
A
Cachalia
Judge
of Appeal
APPEARANCES
For
Appellants:
A J
Nelson SC (and J L van Dorsten)
Instructed
by:
JLU van der Hoven c/o Van
der Spuy & Partners, Cape Town
Phatshoane
Henney Attorneys, Bloemfontein
For
Respondent:
M A Albertus SC
(and V L A de la Hunt)
Instructed by:
J Ramages Attorneys c/o
Ashersons Attorneys, Cape Town
Honey
Attorneys, Bloemfontein
[1]
Regulations,
GN R1682,
GG
25732, 21 November 2003, as amended by inter alia GN R935,
GG
32601,
2 October 2009.
[2]
‘
2.1
Om die teelt en genetiese verbetering van S A Hackney-ponies in die
Gebied aan te moedig;
2.2
om die rasegtheid van SA Hackney-ponies in die Gebied te bewaar en
om deur alle
moontlike en beskikbare middele belangstelling in die
ras te bevorder;
2.3
om die versameling, bewaring en ontwikkeling van SA Hackney-ponies
deur goeie seleksie
ingevolge die aanvaarde beskrywing van ‘n
SA Hackney-ponie aan te moedig en om vermenging met ander rasse uit
te skakel;
2.4
om ‘n ‘Standaard van Voortreflikheid’ vir die ras,
gebaseer op
visuele inspeksie vir genetiese afwykings en bouvorm in
soverre dit verwant is aan funksionele doeltreffendheid, op te stel
en
te handhaaf;
2.5
om noukeurige verslae van die stambome en besonderhede van perde
saam te stel, te
bewaar en in stand te hou van alle SA
Hackney-ponies wat deur die Genootskap by die Vereniging in die
Kuddeboek geregistreer
is.’
[3]
‘
1.
Die Genootskap sal toesien dat die Vereniging rekord hou van alle
geregistreerde SA Hackney-ponies en dat die Kuddeboek,
wat bekend
sal staan as die Suid-Afrikaanse Hackney-poniekuddeboek, uit ‘n
Volgeregistreerde Afdeling sal bestaan. Alle
afstammelinge van
Volgeregistreerde perde van die ras kom in aanmerking vir
registrasie in hierdie Afdeling indien hulle voldoen
aan die minimum
rasstandaarde en aan al die ander vereistes ten opsigte van
registrasie.’
[4]
The
definition reads as follows: ‘“horse”, a SA
Hackney Pony registered in the Studbook or eligible therefor
and the
words “animal/animals”, “stallion/stallions”,
“mare/mares”, “foal/foals”
shall have the
same meaning.’ (My translation)
[5]
‘
11.1
Ten einde die ouerskap van ‘n geregistreerde perd of ‘n
perd geskik vir registrasie te bepaal behou
die Genootskap die reg
om te eniger tyd ‘n DNS-toets of enige ander beproefde
wetenskaplike metode van bevestiging van
ouerskap te vereis-
(a)
as ‘n roetine prosedure soos van tyd tot tyd deur die
Vereniging bepaal;
(b)
in enige geval van twyfel en
(c)
van alle vullens waarvan geboorte kennisgewings na 30 April 2005
ingedien is.
11.2
In die geval van die DNS-toets waarna in Verordening 11.1(a) verwys
word sal die teler vir
alle koste van alle ouerskapkontroletoetse
van die tweede toets af, verantwoordelik wees.
11.3
In die geval van die DNS-toets waarna in Verordening 11.1(b) verwys
word sal die teler of die
Genootskap, soos deur die Raad bepaal vir
die koste van die DNS-toetse verantwoordelik wees.
11.4
Die tipering vir die doel van ouerskapkontrole van alle teelhingste
is verpligtend ongeag bostaande.’
[6]
By-law
21 deals with cancellation of registration. It provides:
‘
21.1
The Board may request the Secretary to apply to the Association for
the cancellation of the registration
of a SA Hackney Pony that was-
(a)
wrongly registered;
(b)
registered due to false or fraudulent information supplied by the
owner
(c)
registered after the owner failed to comply with any by-law that had
to be satisfied
ensuring flawless registration.
21.2
The Secretary must give 30 days’ written notice to an owner of
any cancellation of a
registration certificate at the owner’s
last known address.’ (My translation)