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[2013] ZAGPJHC 300
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Brad Anassis T/A Bikefin Honda v President of MSA National Court Of Appeal No 151 and Others (48254/2011) [2013] ZAGPJHC 300 (22 March 2013)
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Case
No. 48254/2011
DATE:
22 MARCH 2013
ELECTRONIC
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
BRAD
ANASSIS t/a BIKEFIN
HONDA
..............................................................................
Applicant
And
THE
PRESIDENT OF MSA NATIONAL COURT OF APPEAL NO. 151
..........
1st
Respondent
MOTORSPORT
SOUTH
AFRICA
.........................................................................
2nd
Respondent
GREG
GELDENHUISE
............................................................................................
3rd
Respondent
JUDGMENT
MEYER,
J
[1]
The second respondent, Motorsport South Africa (‘MSA’),
is a body which governs motorsport in South Africa. It
manages that
sport inter alia in accordance with its ‘General Competition
Rules’ and appendices (‘GCR’s’).
The GCR’s
are contained in a ‘Handbook’ and constitute the terms of
the contract between MSA and its licence
holders. The applicant is
one such licence holder. The exercise of the powers of MSA is thus
described in GCR 66(i) and (ii):
‘
The
sporting power delegated to MSA by the FIA, CIK and FIM shall cause
MSA to constitute appropriate bodies to exercise the executive
and
judicial powers and functions under these rules in accordance with
the MSA Articles of Association and in terms of the sporting
codes of
the FIA, CIK and FIM.
Such
judicial powers and functions (such as the hearing of appeals or the
determination of the penalty to be inflicted for a breach
of these
rules) may be delegated to a tribunal or court consisting of not less
than three persons appointed by MSA. The exercise
of such judicial
powers and functions shall be final and not subject to review except
on appeal in accordance with these rules.
Appeals shall be directed
to MSA following the decision of a tribunal and to its National Court
of Appeal against the decision
of an MSA court finding.’
[2]
The applicant was the appellant in appeal proceedings before MSA’s
National Court of Appeal (No 151). In addition to
dismissing his
appeal the National Court of Appeal found him guilty of a breach of
GCR 206 – ‘that he filed a protest
in bad faith and with
vexatiousness’ - and issued an order in terms whereof he is
precluded from participation in circuit
motorcycle racing for a
period of two years calculated from the date on which its findings
were published by MSA, which preclusion
was suspended for a period of
three years on certain stringent conditions. The findings of the
National Court of Appeal were published
on 27 October 2011.
[3]
The applicant seeks the review and setting aside of the finding that
he breached GCR 206 and of the severe penalty imposed upon
him as a
result of that finding. The applicant does not seek to have reviewed
and set aside the dismissal of his appeal. In limine
MSA contends
that the findings and orders of MSA’s internal National Court
of Appeal are not subject to judicial review and
that the applicant
has waived any right of review which he may have had.
[4]
The first issue to be decided is accordingly whether the decision of
MSA’s National Court of Appeal is reviewable by this
court in
accordance with the common law principles of administrative law.
Parties may incorporate the rules of natural justice
expressly or by
necessary implication into their contract. See: Turner v Jockey
Club of South Africa 1974 (3) SA (A), at 646A-B;
Government of the
Self-Governing Territory of Kwazulu v Mahlangu and Another
1994 (1)
SA 626
(T) at 634F – G; Cronje v United Cricket Board of South
Africa
2001 (4) SA 1361
(T) at 1376C –F; Klein v Dainfern
College and Another
2006 (3) SA 73
(T) para [25]; National
Horseracing Authority v Naidoo
2010 (3) SA 182
(NPD) at 198E –
200F.
[5]
It was held in Turner, at 646A-B, that
‘
[t]he
test for determining whether the fundamental principles of justice
are to be implied as tacitly included in the agreement
between the
parties is the usual test for implying a term in a contract as stated
in Mullin (Pty.) Ltd. v. Benade Ltd.,
1952 (1) S.A. 211
(A.D.) at pp.
214 – 5, and the authorities there cited. The test is, of
course, always subject to the expressed terms of
the agreement by
which any or all of the fundamental principles of justice may be
excluded or modified. Marlin’s case, supra
at pp. 125 –
130).’
See
also:Transman (Pty) Ltd v Dick and Another
2009 (4) SA 22(SCA)
, paras
28 – 29.
[6]
Brand JA in City of Cape Town (CMC Administration) v Bourbon-Leftleyh
and Another NNO
2006 (3) SA 488
(SCA), para 19, thus restated the
test ordinarily applicable in the determination whether or not a
proposed unexpressed term forms
part of a contract:
‘
A
proposed tacit term can only be imported into a contract if the court
is satisfied that the parties would necessarily have agreed
upon such
a term if it had been suggested to them at the time.’
[7]
Tindall JA in Marlin v. Durban Turf Club and others,
1942 A.D. 122
,
at 126, concluded that the expression fundamental principles of
justice, when applied to the procedure of tribunals, is
‘…
merely a compendious (but somewhat
obscure) way of saying that such tribunals must observe certain
fundamental principles of fairness
which underlie our system of law
as well as the English law. Some of these principles were stated, in
relation to tribunals created
by statute, by Innes, C.J., in Dabner
v. South African railways,
1920 A.D. 583
, in these terms:
‘
Certain
elementary principles, speaking generally, they must observe: they
must hear the parties concerned; these parties must
have due and
proper opportunity of producing their evidence and stating their
contentions and the statutory duties must be honestly
and impartially
discharged.’
[8]
Botha, JA in Turner, at 646D-H, said the following on the subject:
‘
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 Russel 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 I 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) S.A. 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 (Dubner v. S.A. Railways and
Harbours,
1920
A.D. 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).’
[9]
The concept of the fundamental principles of justice as applicable to
domestic tribunals is an elastic one and the courts have
in certain
circumstances introduced ‘further ingredients’ into it,
such as the holding of a fair hearing - procedural
fairness and
substantive fairness - before disciplinary action is taken where a
contracting party is not on equal bargaining par
with the other (per
CJ Claassen, J in Klein v Dainfern College and Another
2006 (3) SA 73
(T), paras 16 – 17), and rationality, which ‘…
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’ (per Levinsohn, DJP in Naidoo, paras 10 –
12).
[10]
It is accordingly necessary to examine the applicable express terms
of the contract and the relevant circumstances in order
to ascertain
whether the parties have expressly or by necessary implication
included any or all of the fundamental principles of
natural justice
into their contract or whether they have excluded or modified any or
all them.
[11]
Prof Cora Hoexter Administrative Law in South Africa 2nd Ed, at 443 –
444, in my view correctly points out that our courts
‘…
for well over a century … have been prepared to apply the
requirements of fairness in disciplinary settings
founded on
contract, irrespective of the ‘public’ or ‘private’
nature of the body concerned. Because
of the propensity of
disciplinary and punitive decisions to cause harm to people’s
reputations and livelihoods, procedural
fairness has been held
applicable to the disciplinary proceedings of churches, unions,
professional associations (such as the Jockey
Club), privately owned
schools and various other bodies. More recently there has been
mention in disciplinary cases of the broader
rationale of unequal
bargaining power in the context of coercive action. The courts have
also recognised that the contract between
the parties may exclude
procedural fairness.’
Footnotes
omitted.
[12]
In considering the question whether the disciplinary powers of major
sporting bodies – in that instance the National
Horseracing
Authority - are to be classified as being the exercise of public
powers and therefore administrative action under the
umbrella of the
Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’),
a question which I do not need to consider,
Wallis J in in Naidoo,
paras [22] and [23], inter alia said the following about sport and
sporting bodies:
‘
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. …’
‘
On
the other hand larger sporting bodies operating in relation to major
sports such as horseracing, football, cricket and rugby
…
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. …’
[13]
MSA exercises control over motorsport in South Africa. It is stated
in its answering affidavit that MSA ‘… is
the sole
sporting authority in South Africa which has been appointed by, and
carries the authority of, the major international
motor sporting
bodies including the FIA, CIK and FIM. As such it is the sporting
authority in South Africa under which all recognised
motor sport
falls.’
[14]
Hearings, including disciplinary and punitive hearings, are in the
first instance conducted by MSA’s Clerk of the Course,
Stewards/Jury, tribunals or Courts of enquiry. They act as courts of
first instance. The penalties imposed by them or their decisions
are
generally subject to internal appeal. Appeals to be considered during
an event against decisions of the Stewards on a protest
are dealt
with by tribunals. Internal appeals are otherwise dealt with first
by a MSA Court of Appeal and in the final instance
by a National
Court of Appeal. ‘A dispute may only be submitted to a MSA
Court of Appeal after the matter has been considered
by a tribunal,
or in cases where an appeal is lodged against a decision of the
Stewards, and such appeal is not heard at the time
of the event by a
tribunal in terms of GCR 214 A.’ (GCR 208(iv)) ‘Appeals
which are not considered during the event
and which are against
decisions of the Stewards on a protest where such tribunals do not
exist, are to be dealt with by MSA Courts
of Appeal.’ (GCR
208(vii)) ‘MSA through its National Court of Appeal
constitutes for its own licence holders a final
court of judgment
empowered to settle finally any dispute or appeal which occurs in its
own territory. If any dispute occurs between
a member, club or body
bound to MSA, and MSA itself, which has not been resolved by an MSA
Appeal Court, this must be treated as
an appeal to this court, which
will render the final decision.’ (GCR 208(i)) ‘Subject
to the provisions of this GCR
no dispute may be submitted to the
National Court of Appeal unless such a matter has been considered by
the MSA Court of Appeal.
(GCR 208(iii))
[15]
It is clear from a reading of the relevant GCR’s that many of
the principles of natural justice have expressly been included
in the
contract between MSA and its licence holders insofar as the
proceedings before Stewards, an MSA Court of Appeal and a National
Court of Appeal are concerned. The procedures adopted in respect of
the proceedings before these administrative tribunals afford
the
persons concerned a proper hearing. Expressly provided for in the
GCR’s are inter alia prior notifications of the time
and place
of a protest hearing and of the details of a protest (GCR 201(ii);
prior (generally a minimum of 7 days) notice of hearings
before the
MSA Court of Appeal and the National Court of Appeal (GCR 220);
prior written specification of the decision appealed
against and of
the grounds of appeal (GCR’s 214E(ii) and 219(i));
representation by fellow competitors or club/association
members in
proceedings before Stewards and the MSA Court of Appeal and of legal
representation in proceedings before the National
Court of Appeal
(GCR’s 202 and 220); an opportunity of stating their cases, of
producing evidence, and of calling witnesses
(GCR’s 202 and
220); an opportunity of correcting or contradicting prejudicial
statements or allegations (GCR’s 202
and 220); an opportunity
of testing the veracity of evidence through cross-examination (GCR’s
202 and 220); the appointment
of members to preside in National
Court of Appeal hearings who have not been involved with the
competition in question, who have
not participated in any earlier
decision and who have no conflict of interest with the matter under
consideration (GCR 209).
[16]
In applying the officious bystander test I am of the view that the
fundamental principles of justice that are not expressly
included in
the contract between MSA and its licence holders - including the
ingredients of procedural fairness, of substantive
fairness and of
rationality – have by necessary implication also been included,
particularly insofar as the proceedings before
an MSA National Court
of Appeal are concerned.
[17]
I am accordingly of the view that derived from the express and
implied terms of the contract between MSA and its licence holders
is
the obligation of MSA’s National Court of Appeal to observe the
elementary principles of justice. Its actions are subject
to review
on the basis of common law administrative principles. Insofar as
Blieden J in Hare v The President of the National Court
of Appeal &
Motorsport South Africa (unreported SGHC 09/2058) considered the same
contract as the one presently under consideration,
I respectfully
disagree with his finding that it ‘… does not
incorporate, as one of its terms, the application of
any
administrative law rules.’
[18]
MSA contends that the applicant has expressly waived or renounced any
right of review by virtue of the provisions of the GCR’s
in
terms whereof the parties agreed that the exercise of the judicial
powers and functions by its internal tribunals ‘…
shall
be final and not subject to review except on appeal in accordance
with these rules’ (GCR 66(ii)); that MSA, through
its national
court of appeal, constitutes for its own licence holders ‘…
a final court of judgment empowered to settle
finally any dispute or
appeal which occurs in its own territory’ (GCR 208(i)); and
that the applicant expressly ‘…
renounced, under pain of
disqualification (see GCR186) the right to have recourse except with
the written consent of MSA to any
arbitrator or tribunal not provided
for in these rules …’ (GCR 122(iii)). There is in my
view no merit in MSA’s
contention in this regard.
[19]
The MSA rules or GCR’s provide for the exercise of ‘judicial’
powers and functions, such as the determination
of the penalty to be
imposed for a breach of the rules and the hearing of appeals,
internally by MSA tribunals in accordance with
the GCR’s. A
party’s recourse is internal – following the decision of
a tribunal, which is a ‘court of
first instance’ to a MSA
Court of Appeal and against the decision of a MSA Court of Appeal
finding to the National Court
of appeal – and not by way of
external review or recourse ‘to any arbitrator or tribunal’
not provided for in
the rules or GCR’s. The GCR’s do not
contemplate the exercise of an unfettered discretion by MSA’s
internal
National Court of Appeal or for it to disregard or to act in
breach of the provisions of the MSA rules or GCR’s in the
exercise
of its ‘judicial’ powers. The GCR’s upon
which MSA relies in support of its contention of a waiver or
renunciation
of any right of judicial review by this court do not
preclude nor do they even limit the review jurisdiction of this court
in circumstances
where the complaints are that the action of its
internal court of final instance is in violation of the principles of
natural justice
which governed its proceedings and that it
disregarded or acted in breach of the provisions of the GCR’s
in the exercise
of its ‘judicial’ powers.
[20]
The history of the relevant events which preceded the applicant’s
appeal before the MSA National Court of Appeal is essentially
not
contentious. MSA inter alia oversees the circuit motorcycle racing
series known as the ‘South African Superbike Championship
Series’. It is described in MSA’s answering affidavit as
‘…a particularly competitive and technologically
advanced racing series.’ The applicant and the third
respondent are both experienced entrants in Superbike racing. The
applicant represents and enters Honda motorcycles in the series and
the third respondent BMW motorcycles. They participated in
the 2010
series which consisted of a number of races that were held at
different venues from February to November 2010.
[21]
One of the motorcycle racing events took place in East London at the
weekend of 29 and 30 October 2010. On 29 October 2010
the applicant
lodged a protest against the third respondent’s BMW motorcycle
no 34 that participated in that race. I interpolate
to refer to
certain GCR’s that are applicable to protests.
[22]
‘The right to protest lies solely with any competitor or
official who may consider himself/herself aggrieved by any decision,
act or omission of an organiser, official, competitor, driver or
other person connected with any competition in which he/she is
or has
been taking part/officiated in.’ (GCR 197) ‘A protest
to be considered by the Stewards/Jury must be lodged
directly with
the Stewards/Jury or the Clerk of the Course, his deputy or the
Secretary of the Meeting.’ (GCR 198(i)) ‘Every
protest
shall be in writing, stating the name and address of the protestor,
the grounds for the protest, be signed by the competitor
or driver
making the protest, be accompanied by the fee laid down in Appendix
R, and be lodged within the appropriate time limit
as specified
below.’ (GCR 198(ii)) The time limits for protests are set
out in GCR 200. The Stewards or Jury ‘…
shall consider
all protests as urgent. They shall take steps as soon as possible to
convene a hearing.’ (GCR 201(i)) ‘They
shall personally
or through the Clerk of the Course, notify the protestor and the
party(ies) protested against of the time and
place of such hearing
and the details of the protest.’ (GCR 201(ii))
[23]
‘The merits of, or grounds for a protest, may not be heard
before they have established that the protest is in writing,
is
accompanied by the correct fee and has been timeously lodged. They
may not however, give a finding in this regard without first
giving
the protestor an opportunity to state why the protest appears to have
been incorrectly lodged in terms of GCR 198 or appears
inadmissible
in terms of GCR 203.’ A protest shall, in terms of GCR 203, be
inadmissible inter alia ‘if it is late’.
‘The
protestor shall also be given an opportunity to call witnesses in
support of his argument. The finding shall be given
solely on the
admissibility of hearing the protest. A protestor dissatisfied with
the findings of the Stewards of the Meeting
or Jury as the case may
be, may appeal to a higher court. Only where a finding in favour of
the protestor/appellant has been given,
may the grounds of the
protest be dealt with. The Appeal Court, if finding that in the
circumstances prevailing at the time, the
protest was correctly
lodged, shall refer the grounds of the protest to the Stewards of the
Meeting for hearing.’ (GCR 201(iv)).
[24]
‘If a protest fails or is judged by the Stewards of the Meeting
to be in bad faith, frivolous or vexatious, the protest
fee shall be
retained and forwarded to MSA where it will be used for the promotion
of its championships or prize-givings. It shall
not be treated as
revenue (see GCR 181).’ (GCR 205) ‘If it is proved to
the satisfaction of the Stewards of the Meeting
that a protest is in
bad faith, frivolous or vexatious, the protestor shall be deemed
guilty of a breach of these rules and may
be penalized accordingly.
Such penalty shall be over and above the forfeiture of the protest
fee referred to in GCR 205.’
(GCR 206)
[25]
The applicant’s protest concerned ‘homologation and
validation’ of the ‘CDI unit’ of BMW motorcycle
no
34 and its alleged technical non-compliance in certain respects. The
findings of the Stewards were that BMW motorcycle no 34
was ‘…
found not to be compliant as per the technical requirements in the
Circuit Racing Handbook and relevant GCR’s.’
They
excluded BMW motorcycle no 34 from that day’s racing event …
‘ and they required BMW to be compliant by
the next race
meeting on the 27th November 2010. The applicant’s protest fee
was returned.
[26]
The third respondent noted an appeal to an MSA Court of Appeal
(COA378) against the findings of and penalty imposed by the
Stewards.
The MSA Court of Appeal heard the third respondent’s appeal on
9 November 2010. It inter alia found that the
applicant’s
protest relating to ‘homologation and validation’ was
‘time-barred’. It overturned the
exclusion of BMW
motorcycle no 34 and the points scored by the competitor on the day
were reinstated. The MSA Court of Appeal
found BMW motorcycle no 34
to have been in technical non-compliance in one respect. It,
however, found that no performance benefit
had been derived as a
result thereof and it imposed a fine of R500.00.
[27]
The applicant then submitted an appeal to MSA’s National Court
of Appeal against the findings of and penalty imposed
by the MSA
Court of Appeal. The hearing of the applicant’s appeal by the
National Court of Appeal (No. 151) was scheduled
for 30 May 2011.
Counsel for the applicant applied orally for an amendment of the
applicant’s notice of appeal to include
a ground of appeal that
the MSA Court of Appeal erred in finding that the protest relating to
homologation was time-barred, and
such amendment was granted. The
President of the National Court of Appeal raised the issue of
‘time-barring’ and a
question whether the original
protest was not a vexatious one in terms of GCR 206, which question
did not form part of the applicant’s
grounds of appeal, with
the legal representatives of the applicant and of the third
respondent as matters that ought to be heard
first. The applicant’s
counsel applied for and was granted a postponement of the appeal
hearing.
[28]
The hearing of the applicant’s appeal by the National Court of
Appeal was subsequently scheduled for hearing on 20 July
2011. At
the commencement of the hearing the applicant’s counsel moved
the applicant’s formal application for the
recusal of two of
the three presiding members of the National Court of Appeal. The
application was argued and dismissed. The
applicant’s counsel
applied for another postponement of the appeal hearing to afford the
applicant an opportunity to consider
his position in the light of the
dismissal of the recusal application. The legal representatives of
both the applicant and of
the third respondent addressed the National
Court of Appeal on the issue of a postponement and it was refused.
At that stage of
the proceedings the applicant’s counsel
advised the presiding members of the National Court of Appeal of the
applicant’s
election to terminate his further participation in
the appeal. His legal representatives excused themselves from
further attendance
and they did not participate further in the
hearing. MSA’s contention in its answering affidavit ‘…that
in the
circumstances the applicant abandoned his appeal by walking
out of the hearing on 20 July 2011’ is undisputed. The
presiding
members of the National Court of Appeal deliberated on and
considered the matter in the absence of the applicant. It dismissed
the appeal and reserved ‘…all other outstanding issues.’
[29]
The written findings and orders of the National Court of Appeal and
its reasons therefor were published on 27 October 2011.
Its findings
were recorded as follows:
‘
1.
The appellant’s appeal is dismissed.
2
.The appellant is found to be guilty of a breach of GCR 206 in that
it filed a protest in bad faith and with vexatiousness.
3.
The appellant as an entrant is precluded from participation in
circuit motorcycle racing for a period of 2 years calculated from
the
date on which these findings are published by MSA.
4.
The preclusion referred to in paragraph 3 is suspended for a period
of3 years on condition that:
4.1
the applicant is not again found guilty of a breach of GCR 206 or any
other breach of the rules where it is found that it acted
in bad
faith or with vexatiousness or pursued frivolous issues;
4.2
the appellant pays an amount of R147 060-00 in respect of the
respondent’s costs, such payment to be made within 48 hours
(from the date and time of publishing these findings by MSA as set
out in paragraph 3 above) as stipulated and contemplated in
GCR’s
196 and 222;
4.3
payment of the amount of R147 060-00 is made directly to Marais
Attorneys, First National Bank – Table View, account number
62025273252, branch code 203809;
4.4
proof of payment (whether by cash, cheque or EFT), be furnished by
fax or e-mail to MSA and Marais Attorneys;
4.5
any and all other amounts payable by the appellant be paid within the
time period permitted in terms of these findings.
5.
The appellant’s appeal fee of R15 000.00 is forfeited in terms
of paragraph iii) of the “Notes” to article
13 of
Appendix R.
6.
It is confirmed, for the sake of clarity, that the appellant’s
protest fee of R5 000-00 is forfeited and payable to MSA
(in so far
as it has not been paid) as if it is an order for payment in respect
of costs, which is to be made within the period
as contemplated in
GCR’s 196 and 222.’
[30]
GCR 208(viii) provides that all hearings and appeals in terms of
MSA’s handbook ‘… are held de novo.’
I
accept that the applicant’s appeal before the National Court of
Appeal is an appeal in the wide sense of a rehearing with
or without
additional information or evidence. See: Tikly v Johannes NO
1963
(2) SA 588
(T), at 590F – 591A. GCR 214E(i) requires inter
alia that a ‘formulated appeal’ be lodged within seven
days
of the written announcement of the MSA Court of Appeal where an
appeal arises from its decision. GCR 214E(ii) requires that every
notice of intention to appeal, application for leave to appeal or
appeal be in writing. GCR 219(i) requires that all appeals specify
‘…the decision appealed against and the grounds of
appeal …’. An appeal submission which fails to comply
with the conditions that prescribe the form, content and lodging
procedures is, in terms of GCR 216(v), inadmissible. The
specification
by an appellant of the decision appealed against and
the grounds of its appeal defines the ambit of the appeal, which is a
rehearing
relating to the issue whether an appellant should succeed
for the reasons it has advanced. See: Groenewald NO v M5
Developments
(Cape) Pty Ltd
2010 (5) SA 82
(SCA), para 24.
[31]
There is no suggestion that it was proved to the satisfaction of the
Stewards that the applicant’s protest was in bad
faith,
frivolous or vexatious or that it was judged by the Stewards to have
been such. The applicant was also not penalised for
any such breach
of the GCR’s. The third respondent’s appeal to the MSA
Court of appeal did not concern any such finding
or any failure by
the Stewards to have made such a finding or to have imposed a penalty
upon the applicant as a result of his breach
of GCR 206. The MSA
Court of Appeal also did not find that the appellant’s protest
was in bad faith, frivolous or vexatious
nor did it impose a penalty
upon the applicant for any such breach of the GCR’s. The
applicant’s formulated appeal
to the National Court of Appeal,
which arose from the decision of the MSA Court of Appeal, did not
concern any such finding or
the imposition of any such penalty by the
MSA Court of Appeal. The issue of a breach by the applicant of the
provisions of GCR
206 was never submitted to any of the MSA courts of
first instance or to its appeal tribunals.
[32]
MSA through its National Court of Appeal has disregarded the
provisions of its own GCR’s in mero motu finding the applicant
to be ‘… guilty of a breach of GCR 206 in that it filed
a protest in bad faith and with vexatiousness’ and in
imposing
a severe penalty upon the applicant as a result thereof. The
applicant is obviously prejudiced by this disregard of the
rules.
Compare: Rowles v Jockey Club of S.A. and Others
1954 (1) SA 363
(A), at 369E. The National Court of Appeal, as a creature of the MSA
rules or GCR’s, had no power to make such finding and
to impose
such penalty. It also violated the fundamental principles of
procedural and substantive fairness. Its finding and penalty
imposed
are furthermore not rational in relation to the dispute between the
applicant and the third respondent as formulated in
the applicant’s
notice of appeal which it was enjoined to ‘settle finally’.
[33]
The finding of MSA’s National Court of Appeal that the
applicant breached GCR 206 and the severe penalty imposed upon
him as
a result of that finding must accordingly be set aside. It is not
necessary for me to consider the applicant’s other
grounds for
review.
[34]
In the result the following order is made:
1.
The finding in paragraph 2 and the penalty imposed upon the applicant
in paragraphs 3 and 4 of the order/findings of the second
respondent’s National Court of Appeal No 151 published on 27
October 2011, a copy of which is annexed to the founding affidavit
marked ‘C’, is reviewed and set aside.
2.
The second respondent is ordered to pay to the applicant the costs of
the application.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
22
March 2013
Date
of hearing: 11 March 2013
Date
of judgment: 22 March 2013
Applicant’s
counsel: Adv ARG Mundell SC
Applicant’s
attorneys: Schwarz-North Inc.
Dunkeld
West
Ref:
Messrs H North and M North
Respondent’s
counsel: Adv J Both SC
Respondent’s
attorneys: Moodie & Robertson
Johannesburg
Ref:
Mr C Beckenstrater