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[2009] ZAGPJHC 60
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Hare v President of National Court of Appeal No 140 and Another (09/2058) [2009] ZAGPJHC 60 (4 November 2009)
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IN THE
SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO:
09/2058
In the
matter between:
HARE, NEIL CLIVE
Applicant
and
THE
PRESIDENT OF NATIONAL COURT
OF APPEAL NO 140
First Respondent
MOTORSPORT SOUTH AFRICA
Second Respondent
J U D G
M E N T
BLIEDEN, J
:
[1]
This is an
application for the review and setting aside of the decision of the
second respondent’s National Court of Appeal
(NCA) No 140 made
on 2 December 2008. The decision of the NCA is annexed to the
applicant’s founding affidavit.
[2] It is common cause that the relationship
between the applicant (and his son) and the second respondent arises
from a contract
between them. The terms of the contract between the
parties are to be found in the “
handbook
”
as explained by the applicant in his founding affidavit.
[3] It is further not in issue that the decision
of the second respondent’s NCA which is now sought to be
reviewed and set
aside, relates to an incident which occurred in the
course of a go-kart racing event that took place in Cape Town on 19
July 2008.
The applicant’s son was involved in this incident.
The applicant appealed, in terms of the contract between him and the
second respondent, to the second respondent’s Court of Appeal
(COA). That appeal was unsuccessful and the applicant then
appealed,
also in terms of the contract between him and the second respondent,
to the NCA. His appeal to the NCA was also unsuccessful
and that
decision is the one that has now being brought on review before this
Court.
[4] The second respondent has opposed the application on various
grounds which will be dealt with later in this judgment. The
first
respondent opposes the application only insofar as it relates to a
costs order which is being sought against him.
[5] On the papers before the court it is plain
that the applicant has brought the present application in terms of
the Promotion
of Administrative Justice Act No 3 of 2000 (PAJA) and,
for that purpose the principles of administrative law as provided for
in
PAJA are relied upon.
[6] The first issue to be decided in this matter is whether the
decision of the NCA is reviewable by the court in terms of PAJA
or
any other legislation. On behalf of the respondents it was submitted
that it was not.
[7] Inasmuch as it is relevant to the present
case, the following definition of “
Administrative
Action
” in PAJA applies:
“
Any decision
taken, or any failure to take a decision, by –
…
(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 …
”
[8] On behalf of the respondents counsel
submitted that the decision which is sought to be reviewed is not one
that was taken “
… when
exercising a public power or performing a public function
…”. As authority for this submission I was referred to
Cronje v United Cricket Board of South
Africa
2001 (4) SA 1361
(T) at
1374H-1377H.
[9] The facts in
Cronje’s
case are relevant in the present case. They are accurately summarised
in the head note which is at page 1362H-1363B:
“
The applicant had been the captain of
the national cricket team. He had involved himself in various corrupt
activities and had been
replaced as captain and withdrawn from the
national team. When his contract with the respondent expired shortly
thereafter, the
respondent did not renew it. The applicant decided
to quit representative cricket and his association with the
respondent, which
fact he confirmed under oath at a commission of
enquiry. The respondent subsequently passed a resolution banning the
applicant
for life from all activities of the respondent and its
affiliates. The applicant was given seven days in which to make
representations
concerning the resolution if he so desired. The
applicant applied for an order reviewing and setting aside the
resolution and
interdicting the respondent from performing certain
actions. The applicant averred, inter alia, that he had been entitled
to a
hearing before the resolution was taken and had not been and
that his right to fair administrative action contained in s 33 of the
Constitution of the Republic of South Africa Act 108 of 1996 had been
violated.
”
[10] In the
Cronje
case, Kirk-Cohen J, after thoroughly analysing a large number of
authorities, concluded that in the exercise of its powers the
United
Cricket Board was not a public body. It was a voluntary association
wholly unconnected to the State. Its functions were
private not
public. In my view the judge was correct in this finding.
[11] In the present case, the mere fact that the
second respondent is the sole controlling body for motorsport in
South Africa,
does not render the decisions of its tribunal an
“
exercise of public power
”
or “
the performance of a public
function
”. Its position is
exactly the same as that occupied by the United Cricket Board in the
Cronje case.
[12] In the circumstances its decisions, which
include the decision against which the present review is directed, do
not qualify
as “
administrative
action
” as defined in PAJA and
are therefore not subject to judicial review.
[13] In my view counsel for the respondents is
correct in his submission that even if the contract between the
parties had incorporated
the rules of natural justice, as one of its
terms, any remedy the applicant may have had would have been a
contractual remedy and
not one founded in administrative law. See
Transman (Pty) Ltd v Dick and Another
2009 (4) SA 22
(SCA) at 32D-F.
[14] In any case, in the present matter the
contract between the parties, which is before the court, does not
incorporate, as
one of its terms, the application of any
administrative law rules. The applicant therefore does not have such
a contractual remedy.
[15] It is further plain from a reading on the
contract, as submitted by the respondents’ counsel, that the
applicant has
“
… renounced,
under pain of disqualification (see GCR186) the right to have
recourse except with the written consent of Motorsport
South Africa
to any arbitrator or tribunal not provided for in its rules
”
.
Furthermore, in terms of the same contract, the applicant agreed
that the decision of the NCA would be final and “
…
not subject to review except on appeal in accordance with these
rules
” (GCR66 page 134).
[16] Counsel for the applicant, on this aspect of
the argument referred me to the decisions in
Klein
v Dainfern College and Another
2006 (3)
SA 73
(T) and
Taylor v Kurstag and
Others
2005 (1) SA 362
(W) as cases
which supported his argument that this Court had the power to review
the decision of the COA. A reading of these
two cases shows that
they are both distinguishable on the facts from the present case. In
both of these cases it was held that
the decision of the body against
which the review was directed was not governed by PAJA. However, on
the basis that the decision
in the
Dainfern
College
case incorporated the
principles of natural justice the court entertained the application.
In the present case there is no room
for such a finding.
[17] The facts in the present case are on all
fours with those in the
Cronje
case, and for the reasons stated in that case, this Court has not the
jurisdiction to hear the present review.
[18] Having come to this finding
,
it is unnecessary to deal with the merits of the present application.
However, in regard to these merits which were argued by
counsel
representing the parties, I am of the view that the applicant did not
make out a case for review against the properly exercised
discretion
of both the COA and the NCA.
[19] In the circumstances the application is dismissed with costs.
_________________________
P
BLIEDEN
JUDGE OF THE HIGH COURT
COUNSEL
FOR APPLICANT A MUNDELL
INSTRUCTED
BY SCHWARZ-NORTH INC
COUNSEL
FOR RESPONDENTS J BOTH SC
INSTRUCTED
BY MOODIE & ROBERTSON
DATE OF
HEARING
DATE OF
JUDGMENT