IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 17516/2024
In the matter between:
SHAUN-NICK BESTER
and
JAN STERK N.O.
LATI MAHAPA N.O.
SHANE WAFER N.O.
CYCLING SOUTH AFRICA
Coram:
Heard:
Justice Lekhuleni et Justice Nziweni
5 August 2025
Delivered electronically: 6 February 2026 (electronically)
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Summary- PAJA- Review-A broad, functional test is applied to determine whether an
act constitutes the exercise of public power - focusing on the nature of the function rather
than the form of the entity - By affiliating with SASCOC to participate in a regulated
sport, respondent became integrated into a statutory framework - derived characteristics
of a public body and - performs a public functions - Principle of subsidiary - an exercise
of public function constitutes administrative action - PAJA is applicable to the merits of
the matter and cannot be bypassed.
2
Section 7(2)(a) of PAJA- competency to adjudicate the substantive merits of the
application - exercise of restraint - due to pursuit of alternative relief - to avoid an
apprehension of prejudging.
ORDER
The application stands to be dismissed with costs, costs on the scale as between party
and party to be taxed on scale C, the costs to include costs of two counsel where so
employed.
JUDGMENT
NZIWENI J (LEKHULENI J Concurring):
Introduction and background
[1] This is an application for the review and setting aside the sanction imposed by the
first, second and third respondents against the applicant in their capacity as the fourth
respondent's appeal tribunal. On 2 June 2024, the appeal tribunal upheld the
disciplinary inquiry sanction imposed on the applicant on 30 October 2023 arising from
multiple charges of sexual harassment levelled against the applicant.
[2] The disciplinary hearing initiated by Cycling South Africa (the fourth respondent)
against the applicant found that a ban of the applicant from taking part in any cycling
activity which is organised by the fourth respondent and or the Union Cycliste
lntemationale ('UCI') or their affiliates was the appropriate sanction in the
circumstances.
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[3] Pursuant to this decision, the applicant was informed of his appeal rights ('internal
appeal') in terms of Clause 7 of the fourth respondent's Safeguarding Policy dated 1
December 2022, which he could exercise in accordance with the applicable procedures
within 72 hours from receiving the finding. The applicant availed himself of the remedy
provided in terms of the policy and appealed against the decision of the disciplinary
hearing.
[4] The internal appeal was chaired by the appeal tribunal which delivered its written
finding on 2 June 2024. The appeal tribunal found that the lifelong ban relating to all
cycling activities imposed by the disciplinary hearing was inappropriate and amended
the sanction to the effect that the applicant may apply for Cycling South Africa (CSA)
membership that would entitle him to ordinary (recreational) membership to participate
locally in CSA's sanction cycling events after 15 years.
[5] Following the appeal tribunal's ruling, the applicant launched the present application
in terms of the provisions of Rule 53 assailing the decision of the appeal tribunal. The
applicant asserts that this application is premised upon the provisions of Rule 53 of the
Uniform Rules of this Court, read together with the provisions of the Constitution.
Therefore, the applicant seeks that the sanction of the appeal tribunal be reviewed and
set aside in terms of Rule 53 of the Uniform Rules of this Court.
[6] The applicant further contends that this Court has jurisdiction to hear the matter in
terms of section 21 of the Superior Courts Act 10 of 2013.
[7] As previously noted, the appeal tribunal ruling resulted in a 15-year ban on the
applicant's participation in both CSA and its international affiliate, UCI.
The parties
[8] The applicant is an adult athlete and coach. The applicant describes himself as an
esteemed athlete and cycling coach with suitable international qualifications and
esteemed athlete and cycling coach with suitable international qualifications and
expertise. The first to third respondents in this matter are cited in their official capacities
of the fourth respondent's appeal tribunal.
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[9] The fourth respondent is the National Governing Body of Cycling in South Africa. It
is asserted in the founding affidavit that the fourth respondent is a National Federation,
duly recognised by SASCOC and affiliated to SASCOC, and therefore, duly authorised
to administer the sport of cycling in the Republic of South Africa, subject to - and in
terms of a constitution, policies, and regulations.
[1 O] It is also asserted that the fourth respondent, as a National Federation, is further
affiliated with the UCI which is the International Federation tasked with promoting the
high-performance sport of cycling internationally in terms of the International Olympic
Committee. The UCI promulgated a Code of Conduct, and it makes provision for
disciplinary procedures to which all members of the UCI are subject. The fourth
respondent as a member of UCI, promoted its own Code of Conduct and disciplinary
proceedings which are in line with those of the UGI, and all members of the fourth
respondent including the applicant are subject to the Code of Conduct and disciplinary
procedures.
Grounds of Review
[11] The applicant is of the view that the decision of the appeal tribunal is susceptible
to be reviewed and set aside on the following grounds:
a) it is premised on irrelevant considerations and it is irrational;
b) it is premised on a defective and inappropriate charge sheet;
c) it is based on a procedure that was unfair and ultra vires powers imposed upon
the respondents;
d) it is wholly unreasonable, inappropriate and unfair that no reasonable tribunal
ought to have adopted under the prevailing circumstances;
e) it is not rationally premised upon the objective evidence or facts which emanate
from the record;
f) it is not rationally connected to the reasons provided by the respondents in their
ruling;
g) it is irrational in that the respondents provided no basis upon which they imposed
a sanction of a 15-year ban;
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h) it has caused severe and irreparable harm and damage to the applicant as an
individual, including but not limited to emotional and psychological trauma, which
have a substantial and severe impact on his constitutional right to choose his
trade, occupation or profession freely, as provided for and envisaged in section
21 of the Constitution; and
i) it violates the principles pertaining to legality, fairness, equity and does not
survive constitutional muster. And maintains that the achievement of
administrative justice is dependant upon administrative action being valid and
therefore should be in compliance with the principle of legality and fairness.
Preliminary Points
[121 The fourth respondent raised two preliminary points against the applicant's
application. Regarding the first preliminary point, the respondents' asserted that in terms
of the fourth respondent's safeguarding policy and specific rules pertaining to
disciplinary proceedings, the fourth respondent is empowered to appoint a judicial panel
in the event of a person against whom a hearing is held is not satisfied with the finding
and intends to challenge such finding on appeal. To this end, the fourth respondent
resolved to refer to the applicant's appeal against the findings and sanction of the
disciplinary proceedings to the judicial body of SASCOC in terms of the provisions of
Chapter 11 of the Constitution of SASCOC. The fourth respondent stated that the
judicial body of SASCOC acted in terms of the provisions of clause 50 of the Constitution
of SASCOC and appointed the first, second and third respondents to act as a appeal
tribunal in terms of clause 50.6 of SASCOC Constitution.
[13] The respondent further contended that since the judicial body of SASCOC heard
the appeal and substantially upheld the findings and sanctions imposed by the
disciplinary inquiry, and by virtue of the provisions of section 13 of the National Sport
and Recreation Amendment Act 18 of 2007 ('NSRA'), it is clear that SASCOC has a
and Recreation Amendment Act 18 of 2007 ('NSRA'), it is clear that SASCOC has a
direct and substantial interest in these proceedings and should have been joined as a
respondent. In the premises, the the fourth respondent raised a point in limine of non
joinder concerning SASCOC and submitted that such non-joinder is material warranting
the dismissal of the applicant's application with costs.
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[14] In the second preliminary point, the fourth respondent averred that the findings and
sanctions imposed by the disciplinary inquiry which were substantially upheld by the
judicial body on appeal constitute administrative action as defined in terms of s 1 (b) of
the Promotion of Administrative Justice Act 3 of 2000 (PAJA'). In terms of s 7(2)(a) of
PAJA, a court is precluded to review administrative action unless any internal remedy
provided for in any other law has first been exhausted. The respondent further stated
that in terms of paragraph 50.7 of the Constitution of SASCOC any party aggrieved by
a decision of the judicial body may refer the matter to the Court of Arbitration for Sports,
{'CAS'), the relevant International Federation or an appropriate court having jurisdiction
for its final determination within 14 days from the granting of the ruling.
[15] After the judicial body of SASCOC consisting of the first, second, and appeal third
respondents (appeal tribunal) delivered their ruling on appeal, the applicant was thus
afforded the remedy of referring the matter to the CAS or UCI for its final determination,
which the applicant failed to do so. According to the fourth respondent, the applicant
failed to explain in the founding affidavit why the applicant has not exercised the
available remedies nor has the applicant illustrated any exceptional circumstances as
referred to in section 7(2)(c) of PAJA. The respondents implored the court to dismiss
the application on this ground.
Principal submissions by the parties
(a) The applicant's submissions
[16) The applicant denies that SASCOC has an interest in the matter. According to the
applicant, SASCOC was never part of any of the preceding proceedings.
[17) The applicant further contends that while the appeal ruling's heading refers
exclusively to CSA, the ruling clearly states that the first to third respondents acted in
terms of the Safeguarding Policy of CSA. Furthermore, the initial notification of enquiry
terms of the Safeguarding Policy of CSA. Furthermore, the initial notification of enquiry
clearly shows that the notice to attend was instituted by CSA, and the disciplinary
hearing finding clearly shows the heading as 'the fourth respondent versus him.
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[18] According to paragraph 22.2.3 of the applicant's founding affidavit, the sanction
imposed by the fourth respondent constitutes administrative action as provided for and
envisaged in Rule 53, read together with the provisions of section 33 ( 1) of the
Constitution.
[19] The applicant further asserts the following in paragraph 19.1 of the founding
affidavit:
"The framework against which this application should be adjudicated is that an admin istrative
function , including an administrative decision, should be taken in a manner that is legitimate and
procedurally fair."
[20] The applicant further contends that exercise of public power must comply with the
Constitution and the doctrine of legality which forms essence of the process
implemented by the respondents. It is the applicant's contention that lawfulness is one
of the three components of an individual's right to just and fair administrative action.
[21] The applicant also asserts that reasonableness and fairness are in their own right,
requirements for the legality of administrative action. It is the applicant's submission that
every person has the right to administrative action that is procedurally fair and
reasonable. So, the argument goes, it is of paramount importance for the respondents
to impose their administrative powers reasonably and in a just and fair manner.
[22] According to the applicant, the fact that he is prohibited from participating in any
cycling events, sanctioned by the fourth respondent is unfair shocking and
unreasonable.
[23] The applicant asserts that in the Constitutional era, legality, inter alia, entails that
administrators such as the respondents should act in a fair, reasonable and lawful
manner to all.
[24] According to the applicant, this court is called upon to apply its judicial discretion
and to make a finding which accords with the principles which underpin fair and
reasonable administrative action. The applicant maintains that the principle of !egaHtv is
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paramount. In his papers, the applicant specifically emphasised that the review
application is premised upon the Principle of lega!itv, the common law, in accordance
with the procedure which is governed by Rule 53 and on section 33 of the Constitution.
(b) The fourth respondent's submissions
[25] On the first preliminary point the fourth respondent submitted that SASCOC should
have been joined as a respondent, as it is clear that it has a direct and substantial
interest in these proceedings by virtue of Section 13 of the National Sport and
Recreation Act (the 'NSRA').
[26] The fourth respondent contends that the non-joinder of SASCOC is material;
consequently, the application falls to be dismissed on that basis.
[27] On the second preliminary point the fourth respondent submitted that the applicant
failed to exhaust internal remedies as contemplated in PAJA. According to the fourth
respondent, in terms of section 7 (2) (a) of PAJA, a court is precluded to review
administrative action unless any internal remedy provided for any other law has first
been exhausted. It is the fourth respondent' s submission that these proceedings fall
under the provisions of PAJA.
[28] It is further asserted on behalf of the fourth respondent that a legality review only
finds application when PAJA does not apply. It is argued on behalf of the fourth
respondent that, where an action or decision constitutes an administrative action; the
principle of subsidiary demands that the action or decision to be dealt with in terms of
PAJA. Consequently, where PAJA is applicable, the principle of subsidiarity dictates
that a party may not circumvent the Act to rely directly on the Constitution or common
law.
[29] The fourth respondent asserts that the grounds relied upon by the applicant in the
founding affidavit and the heads of argument constitute an appeal rather than a review
and fail to properly identify the applicant's cause of action.
9
[30] The fourth respondent further contends that it is a National Federation. It argues
that their dispute resolution is governed by section 13 of the NSRA, and that section
13(2) of the NSRA creates a statutory obligation to refer unresolved disputes within a
sports or recreation body to the Sports Confederation (SASCOC). The fourth
respondent is a member of SASCOC. The argument continues that any appeal against
a decision of the fourth respondent lies with the judicial body of SASCOC.
[31) The fourth respondent draws this Court to clause 50 of SASCOC's constitution that
provides for a dispute resolution mechanism. Paragraph 50.1.1, reads as follows:
'Subject to the constitution of the Republic, and save in circumstances where there is a need for
urgent relief of a sort which cannot be obtained through the dispute resolution procedure
contemplated by this article ... nobody or individual falling under the jurisdiction of Sport SA shall
approach a court of law to decide on a sport related dispute it has with the body or individual
affiliated to Sport SA or with Sport SA itself, until such individual or body has first exhausted all
available internal remedies , at all appropriate levels which is applicable to such a party, and as
may be applicable to such a dispute or complaint'.
[32] The fourth respondent also places reliance upon clause 50.7.1 of the SASCOC
constitution that provides for a remedy of an appeal to the Council for Arbitration on
sport [CAS], the International Federation ("IF") or an appropriate court having jurisdiction
for a final determination if a party feels aggrieved by a decision of the JB. According to
the fourth respondent, in terms of clause 50. 7 .1, an aggrieved party can only refer a
decision of the JB to a court for an appeal and not a review. Thus, there is a statutory
bar to refer a dispute to a court prior to the exercising the appeal remedy provided in
the constitution of SASCOC.
the constitution of SASCOC.
[33] The fourth respondent further submit that in terms of paragraph 50.7 of the
Constitution of SASCOC; any party aggrieved by a decision of the judicial boy may refer
the matter to the Court of Arbitration for Sport (CAS), the relevant international
federation or an appropriate court having jurisdiction for its final determination within 14
days from the granting of the ruling. It is the respondents' assertion that after the judicial
body of SASCOC, consisting of the first, second, and third respondents, delivered
their ruling on appeal; the applicant was thus afforded the remedy of referring the matter
10
to the Court for Arbitration for Sport (CAS) or to the UCI for its final determination, which
the applicant failed to do.
(34] The fourth respondent further submits that in terms of article 35 of the Code of
Conduct of the UCI, any decision of the Ethics Commission may be appealed before
the Court of Arbitration for Sport (CAS) by the parties to the proceedings. The extension
of the sanction imposed on the applicant to a global application as recorded in annexure
"B" is a sanction imposed by the Ethics Commission of UCI and is therefore appealable
to CAS.
[35] Lastly, it asserted by the respondents that the applicant failed to explain in the
founding affidavit why the applicant has not exercised the available remedies.
The law
[36] At this point I consider it apt to set out the provisions of section 1 of PAJA:
"administrative action" means any decision taken, or any failure to take a decision,
by-
{a) an organ of state, when-
(i) exercising a power in terms of the Constitution or a provincial constitution; or
{ii) 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 , but does not include-
{aa) the executive powers or functions of the National Executive, including the
powers or functions referred to in sections 79 (1) and (4), 84 (2) {a}, {b), (c), (d), (f), (g), (h), (i)
and {k), 85 (2) (b), {c), (d) and (e}, 91 (2), (3), (4) and (5), 92 (3), 93, 97, 98, 99 and 100 of the
Constitution;
(bb) the executive powers or functions of the Provincial Executive, including the powers or functions
referred to in sections 121 (1) and (2), 125 (2) (d), {e) and (f), 126, 127 (2), 132 (2), 133 (3) (b},
137, 138, 139 and 145 (1) of the Constitution ;
137, 138, 139 and 145 (1) of the Constitution ;
(cc) the executive powers or functions of a municipal council;
(dd) the legislative functions of Parliament, a provincial legislature or a municipal council;
(ee) the judicial functions of a judicial officer of a court referred to in section 166 of the Constitution
or of a Special Tribunal established under section 2 of the Special Investigating Units and
11
Special Tribunals Act, 1996 (Act 7 4 of 1996), and the judicial functions of a traditional leader
under customary law or any other law;
(ff) a decision to institute or continue a prosecution;
(gg) a decision relating to any aspect regarding the nomination, selection or appointment of a judicial
officer or any other person, by the Judicial Service Commission in terms of any law;
(hh) any decision taken, or failure to take a decision, in terms of any provision of the Promotion of
Access to Information Act, 2000; or
(ii) any decision taken, or failure to take a decision, in terms of section 4 (1 )"
[37) In Sokhela & Others v MEG for Agriculture and Environmental Affairs (KwaZulu
Natal) & Others 2010 (5) SA 57 4 (KZP) paragraphs 60-61 Wallis J stated:
'(60] The lineaments of the enquiry that must now be undertaken are fairly clearly established .
The question whether action taken by a public official or authority is administrative is central to
the enquiry. The focus of the enquiry is primarily upon the nature of the Power being exercised ,
rather than the identity of the person or body exercis ing the power. With the enactment of PAJA
the grounds of judicial review of administrative action have been codified and the cause of action
for judicial review of administrative action now ordinarily arises from PAJA. That requires a
consideration of the action in question, against the requirements of the definition of 'administrative
action' in PAJA. There are seven requirements, namely that there must be (i) a decision , (ii) by
an organ of State, (iii) exercising a public power or performing a public function, (iv) in terms of
any legislation, (v) that adversely affects someone's rights, (vi) which has a direct , external, legal
effect, and (vii) that does not fall under any of the exclusions listed Ins 1 of PAJA. As the judgment
in Grey's Marine makes clear it is a requirement flowing from the definition of 'decision' in PAJA
that the decision be one of an administrative nature. In deciding whether a decision is one of an
administrative nature the appropriate starting point is to determine whether it would constitute
administrative action within the meaning of s 33 of the Constitution. The boundaries between
administrative action and other forms of conduct by organs of State will often be difficult to draw
and this must be done carefully on a case by case basis, having regard to the provisions of the
Constitution and the need for an efficient, equitable and ethical public administration.
(61] The requirement that the decision should be of an administrative nature has been described
as 'something of a puzzle'. In my view it serves two important purposes. Firstly it focuses attention
on the need for the court to determine whether the particular exercise of public power or
performance of a public function under consideration is properly to be classified as administrative
action. As the Constitutional Court recognised in Fedsure, that task of classification is mandated
by the provisions of the Constitution itself. That does not mean that the former classification of
administrative powers and functions, that was largely discredited and abandoned in our
administrat ive law even before the advent of the interim Constitution, has now been revived. The
12
present situation is that the Constitution draws an ostensibly simple distinction between acts that
constitute administrative action and acts that do not, and the courts must draw that distinction or
essay that process of constitutional classification. The court is required to make a positive
decision in each case, whether a particular exercise of public power or performance of a public
function is of an administrative character. Thus, the determination of what constitutes
administrative action does not occur by default, on the basis that, if it does not fit some other
juristic pigeonhole, It is administrative action. There needs to be a positive finding that particular
conduct is administrative action, in order for the power of judicial review under PAJA to be
engaged. That approach ties in closely with the second purpose, which is to make it clear that
the mere fact, that an exercise of public power or the performance of a public function does not
fall within one of the exclusions in subparas (aa) - (ii) of the definition of "administrative action",
does not necessarily mean that the exercise of public power or performance of a public function
in question constitutes administrative action. It precludes the determination of what constitutes
administrative action from becoming a mechanical exercise in which the court merely asks itself
whether a public power is being exercised or a public function is being performed, and then
considers whether it falls within one or other of the exceptions . The inclusion, of the requirement
that the decision be of an administrative nature, demands that a detailed analysis be undertaken
of the nature of the public power or public function in question. to determine its true character.
This serves in turn to demonstrate that the exceptions contained in the definition of administrative
action are not a closed list, nor are cases falling outside those exceptions to be looked at on the
basis that, if they are not eiusdem generis with the exceptions, they are automatically to be treated
as constituting administrative action.
There is accordingly no mechanical process by which to determine whether a particular exercise
of public power or performance of a oubHc function wm constitute administrative action. That will
have to be determined in each instance by a close analysis of the nature of the power or function
and its source or purpose.'
[38] In President of the Republic of South Africa & Others v South African Rugby
Football Union & Others 2000 (1) SA 1 (CC) paragraph 141, the following was stated:
'[141] In s 33 the adjective "administrative· not "executive" is used to qualify "action". This
suggests that the test for determining whether conduct constitutes "administrative action" is not
the question whether the action concerned is performed by a member of the executive arm of
government. What matters is not so much the functionary as the function. The question is whether
the task itself is administrative or not. It may well be, as contemplated in Fedsure, that some acts
of a legislature may constitute "administrative action". Similarly, judicial officers may, from time to
time, carry out administrative tasks. The focus of the enquiry as to whether conduct is
"administrative action· is not on the arm of government to which the relevant actor belongs, but
on the nature of the power he or she is exercising.
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(143] Determining whether an action should be characterised as the implementation of legislation
or the formulation of policy may be difficult. It will, as we have said above, depend primarily upon
the nature of the power. A series of considerations may be relevant to deciding on which side of
the line a particular action falls. The source of the power, though not necessarily decisive, is a
relevant factor. So too is the nature of the power, its subject matter, whether it involves the
exercise of a public duty, and how closely it is related on the one hand to policy matters, which
are not administrative, and on the other to the implementation of legislation, which is. While the
subject matter of a power is not relevant to determine whether constitutional review is appropriate,
it is relevant to determine whether the exercise of the power constitutes administrative action for
the purposes of s 33. Difficult boundaries may have to be drawn in deciding what should and
what should not be characterised as administrative action for the purposes of s 33. These will
need to be drawn carefully in the light of the provisions of the Constitution and the overall
constitutional purpose of an efficient, equitable and ethical public administration. This can best
be done on a case by case basis.'
Evaluation
The preliminary points
(a) The non-Joinder
[39] The general rule is that, if a party has an interest of such a nature that it is likely to
be prejudiced by a judgment given in the proceedings, such a party ought to be joined.
Standard Bank of South Africa Ltd v Swart/and Municipality and Others 2010 ( 5) SA 4 79
at 482F. The test is whether or not a party has a 'direct and substantial interest' in the
subject matter of the action, that is, a legal interest in the subject matter of the litigation
which may be affected prejudicially by the judgment of the court. Zingwazi Contractors
CC v Eastern Cape Department of Human Settlements 2021 (6) SA 557 (ECG) para
CC v Eastern Cape Department of Human Settlements 2021 (6) SA 557 (ECG) para
62. A 'direct and substantial interest' has been held to be an interest in the right which
is the subject-matter of the litigation and not merely a financial interest which is only an
indirect interest in such litigation. Bohlokong Black Taxi Association v Interstate Bus
Lines (Edms) Bpk 1997 (4) SA 635 (0) at 644A-B. It is a legal interest in the subject
matter of the litigation, excluding an indirect commercial interest only. A mere financial
interest is an indirect interest and may not require joinder of a person having such
14
interest. Hart/and lmplemente (Edms) Bpk v Ena/ Eiendomme BK 2002 (3) SA 653 at
663E-H.
[40] In the present matter, it is common cause that the fourth respondent is an
as~ociation duly established in accordance with the provisions of the NSRA as
amended. As discussed above, the fourth respondent is the National Governing Body
of Cycling in South Africa and is affiliated to International Cycling Union (UCI). The
applicant was a member of the fourth respondent. He is a professional athlete and UCI
accredited level 4 coach. The applicant is subject to the rules and Code of Conduct of
both the fourth respondent and UCI. In terms of s 13 of NSRA, every sport or recreation
body must, in accordance with its internal procedure and remedies provided for in its
constitution, resolve any dispute arising amongst its members or within its governing
body.
[41] Section 13(2) of NSRA provides that where a dispute cannot be resolved within its
own structure by a sports or recreation body, the dispute must be referred to the Sports
Confederation. Section 13(2) of NSRA creates a statutory obligation to refer unresolved
disputes within a sports or recreation body to the Sports Confederation. The Sports
Confederation referred to in section 13(2) is SASCOC. The Constitution of SASCOC
provides for the appointment of a judicial body which is empowered to hear and
determine appeals by any party against a decision of Sport SA, or a member affiliated
to it. The fourth respondent is a member of SASCOC and thus any appeal against a
decision of the fourth respondent lies to the judicial body of SASCOC. SASACOC is
bestowed the obligations to resolve disputes under section 13 of the NSRA. As
discussed above, clause 50 of the Constitution of SASCOC forbids the institution of
proceedings in a court of law on a sport related dispute until such individual or body has
exhausted all available internal remedies at all appropriate levels applicable to such
exhausted all available internal remedies at all appropriate levels applicable to such
dispute. Evidently, the provisions of NSRA, the Constitution of SASCOC apply to the
applicant. The judicial body of SASCOC heard the appeal of the applicant and
substantially upheld the findings and sanction imposed by the disciplinary inquiry. By
virtue of the provisions of section 13 of the NSRA it is abundantly clear that SASCOC
has a direct and substantial interest in these proceedings and should have been joined
as a respondent. To this end, I agree with the fourth respondent's submissions that the
non-joinder of SASCOC is material in this matter.
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[42] In light of the findings in this judgment, it is clear that SASCOC possesses a direct
and substantial interest in the matter and, as such, ought to have been joined as a
necessary party.
(b) Does PAJA serve as the exclusive legislative framework for this review,
thereby superseding other considerations of fact or common law?
[43] As I have already mentioned, it is the contention of the applicant's counsel that this
review is not launched in terms of PAJA, but is premised upon the principle of legality,
the common law, and the Constitution. Accordingly, PAJA requirements are not
applicable. It thus appears in this matter that the applicant relies on a doctrine of legality,
constitution and common law for this review.
[44] Before addressing the second leg of this preliminary point regarding the failure to
exhaust internal remedies, I must first resolve a jurisdictional question pertaining to the
first part of the objection point. Therefore, the pertinent question, presented on this point
in limine, is whether PAJA or the principle of legality governs these review proceedings.
[45] The applicability of PAJA or the jurisdictional gateway [from PAJA] hinges on the
threshold inquiry of whether the impugned sanction and the decision satisfy the
definition of administrative action.
[46] Indeed, the fourth respondent vehemently asserts that the applicant wrongly
bypassed PAJA and in so doing, offended the subsidiary principle. The fourth
respondent maintains that when the judicial body of the fourth respondent imposed the
sanction upon the applicant, it was preforming a public function. The fourth responded
further argues that PAJA is the overriding authority governing the facts of this
application.
[47] The pivotal inquiry is whether the imposition of the sanction in question falls within
the statutory ambit of administrative action. Put otherwise, whether the provisions of
PAJA find application in this instance is contingent upon whether the sanction may be
PAJA find application in this instance is contingent upon whether the sanction may be
properly characterised as an act of an administrative nature. The contention of the fourth
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respondent is that the sanction that is a cause of action, is an administrative action as
defined in section 1 of PAJA.
[48] The question that begs is whether the imposition of the sanction by the first to third
respondents was done whilst they were exercising a public power or performing a public
function.
[49] Notably, while the applicant does not dispute in his papers that the respondents
possess administrative powers and that the fourth respondent's sanction constitutes
administrative action, he nonetheless relies on the doctrine of legality, the Constitution,
and the common law for this review.
[50] Mr Bote SC, counsel on applicant's behalf, contended that it is clear that the fourth
respondent is entirely a private voluntary association with no statutory foundation at all
or under auspices of governmental control. Mr Botes SC maintains that the fourth
respondent derives its authority over cyclists from membership agreements. It is further
the contention of Mr Botes that the fourth respondent lacks defining features that places
it within the purview of PAJA. Applicant's counsel earnestly argues that the NSRA, does
not bestow authority upon the fourth respondent to exercise public power.
[51) The essence of Mr Botes' argument is that if regard is had to the definition of PAJA,
PAJA has very distinctive and a very narrow application insofar as reviews are
concerned. Mr Botes also advanced the argument that, because the fourth respondent
is a voluntary association, it falls outside the scope and ambit of PAJA.
[52] Mr Botes' apparent authority for this proposition is grounded upon an unreported
case of Pretoria Cricket Club v Pretoria Sports Union, case number 81786/2017,
Gauteng Local Division, Pretoria, 16 May 2019. In this case Unterhalter J, as he then
was, stated the following:
'The applicant submit that the Union does exercise public powers, because the Union's facilities
derive from a 99-year lease, concluded with the City of Tshwane, that the lease specified that the
land leased from the City to the Union, must be used exclusively to establish sports club. The
purpose of the lease is to provide a sport facility. Well, the City clearly specified the use to which
17
the land, the leased land can be put and doubtless had in mind how much, how such use would
bring about public benefit. That to my mind is insufficient to characterise the Union's competences
as public powers. The City has simply been willing to place a public resource "land" under the
control of private body who can use the resource to make sporting facilities available. The Union's
powers are a matter of private agreement and entail no exclusive coercive regulatory
competence. Nor does the City enjoy any control of the exercise of the Union's powers, save
under the contractual positions of the lease. The Union is bound by the terms of the 99 year lease
but is equally at liberty to enter into other contractua l arrangements without public constraint. In
the circumstances I cannot find that the decisions of a Union as to affiliation have any connection
to the exercise of public power. And hence, neither the principle of legality, nor PAJA can be of
application.'
[53) First and foremost, Mr Botes's oral argument is inconsistent with the founding
affidavit. Consequently, during his submissions, a question was posed to counsel, and
it was pointed out that the applicant's founding affidavit appears to refer to PAJA,
administrative action, and the exercise of public power. It was further pointed out during
Mr Botes's oral submissions, in relation to the question posed, that nowhere in the
founding affidavit is there a mention that the applicant does not rely on PAJA.
[54] There is a clear inconsistency in the applicant's case. Mr Botes's submissions are
not plausible or supplementary additions, but rather departures from the pleading. His
answers to the questions posed by this Court fail, however, to resolve the discrepancy
between his oral argument and the founding affidavit as well as the replying affidavit.
[55] Furthermore, in the instant case, the relationship between the applicant and
SASCOC differs substantially from the relationship observed between the Union and
SASCOC differs substantially from the relationship observed between the Union and
the City in the aforementioned case. There is a dramatic difference, because amongst
others, the relationship between SASCOC and the applicant is not linked to a lease
agreement.
[56) Or, put differently, the argument of Mr Botes overlooks the fact that the present
case is not at all fours with the Union Cricket case, supra. Accordingly, the Union Cricket
case, supra, is readily distinguishable from the present case. The applicant's reliance
on the Union case is misplaced; it does not recognise the proposition that the decision
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to affiliate SASCOC [and the fourth respondent] invariably connected the fourth
respondent to the exercise of public power.
[57] Therefore, there are several reasons why his [Mr Botes] position is untenable. In
the first place, it is entirely clear, in my reading of the cases, that the fourth respondent
is a national federation recognised under the National Sport and Recreation Act 110 of
1998. Thus, the fourth respondent is mandated to develop and control cycling in the
Republic.
[58] More significantly, it should be noted here that it is not in dispute that the fourth
respondent is an official affiliate of SASCOC. Consequently, they [the fourth respondent
and SASCOC] operate within a defined statutory framework under the National Sport
and Recreation Act, rather than functioning as a strictly private entity. Thus, their
[SASCOC and the fourth respondent] conduct is inextricably intertwined.
[59] It is also relevant to note that since the fourth respondent's affiliation with SACOC,
the fourth respondent's powers are not only based on a private agreement. Instead,
they entail exclusive coercive regulatory competence. It is also important to emphasise
that the fourth respondent is part of a statutory regulatory scheme.
[60] This part of the evidence and the 'concessions' made in the founding affidavit
cannot be brushed aside. As correctly pointed out by the fourth respondent, both
entities, because of their relationship, are bound by national sports legislation.
[61) In addition, this conclusion is further reinforced by the fact that it is not in dispute
that under section 1 of the National Sports and Recreation Act 110 of 1998 ('NSRA'), a
national federation is defined as -
'a national governing body of a code of sport or recreational activity in the Republic recognised
by the relevant international controlling body as the only authority for the administration and
control of the relative code of sport or recreational activity in the Republic'.
control of the relative code of sport or recreational activity in the Republic'.
[62] Admittedly, because the Minister of Sport, Arts and Culture delegates oversight of
high-performance sport to SASCOC, [SASCOC] affiliated entities such as CSA [the
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fourth respondent] are regarded as part of a broader statutory framework rather than
exclusively private associations or clubs. Consequently, administrative functions can be
performed within a private-law context.
[63) This conclusion is further reinforced by the fact that an organ of state is defined in
section 239 of the Constitution as:
'(a) any department of state or administration in the national, provincial or local sphere of
government; or
(b) Any other functionary or institution-
(i) exercising a power or performing a function in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation, but does
not include a court or a judicial officer; .... .'
The Sport Act provides for the recognition of a sport confederation Section 2 (1) of the
Sport Act reads as follows:
"(1 ) The Minister must recognize in writing a Sports Confederation which will be the national
coordinating macro body for the promotion and development of high performance sport in the
Republic.'
[64] In contrast to the Union matter which involved private agreements, this case
concerns mandatory regulatory powers. In the Union matter, the City held no authority
over the Union beyond the specific terms defined in their contractual lease. In the
present case, as noted above, the fourth respondent also operates under a public
mandate that cannot be treated as a typical private commercial relationship. Thus, the
applicant's reliance on the Union case is not well-grounded.
[65) In my view, a case that skates close to the core of our case, is the case of Chess
South Africa v South African Sports Confederation and Olympic Committee and Another
(62189/2023) [2024] ZAGPPHC 601 (25 June 2024). This I say because, the Chess
case also touched on the nature of public power. It also established that because there
is no path to international participation or national colours except through SASCOC, the
is no path to international participation or national colours except through SASCOC, the
organisation fulfils a governmental function. This directly supports the view that affiliated
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bodies (like CSA or Chess SA) are not "purely private clubs" but entities performing
public functions within a "privatised setting"; This is so because they perform
administrative functions within the SASCOC system.
[66] Ultimately, the core of the issue lies in the fact that by affiliating with SASCOC to
participate in a regulated sport, the fourth respondent became integrated into a statutory
framework [National Sport and Recreation Act as the "empowering provision"]. In doing
so, it derived characteristics of a public body and as such, performs a public function.
Consequently, the imposition of a sanction constitutes what is regarded essentially as
an exercise of a public function and, as such, qualifies as administrative action as
contemplated in PAJA.
. [67] It is also important to record that in the case of Ndoro and Another v South African
Football Association and Others (16/16836) [2018] ZAGPJHC 74; [2018] 3 All SA 277
(GJ); 2018 (5) SA 630 (GJ) (24 April 2018), the court determined that the SAFA
Arbitration Tribunal is not a form of private arbitration but a regulatory dispute resolution
body. The court found that these tribunals lack party autonomy inherent in private
arbitration because participation is compelled by regulatory bodies like FIFA, SAFA, and
the NSL, and their decisions constitute administrative actions reviewable under PAJA.-I
consider it prudent to cite the following excerpt from the Ndoro case, supra, the following
is stated at paragraph 27-36:
'The question is whether, in substance, the appeal to the Arbitration Tribunal is a private
arbitration. I do not consider that it is. First, private arbitration is a voluntary agreement between
parties to refer a dispute to arbitration. In so doing, the parties frame the dispute to be referred,
the powers to be conferred on the arbitrator, and choose the arbitrator or the mechanism of
appointment.
These essential attributes of party autonomy, choice and agreement are altogether lacking in
These essential attributes of party autonomy, choice and agreement are altogether lacking in
respect of the Arbitration Tribunal. First, Mr Ndoro and Ajax referred their dispute to the DRC not
because they and the NSL chose to do so (indeed they entirely disagree on this matter) but
because Mr Ndoro and Ajax considered that they were required to do so. And whichever dispute
resolution body should ultimately be determined to have jurisdiction over the dispute, that is a
function of compulsory rule making by FIFA, SAFA and the NSL. Second, the DRC is an institution
created under the Handbook that the NSL, Member Clubs and players must use. How the DRC
is constituted and its powers is not chosen by the parties who submit their disputes to it. The DRC
21
is not a species of private arbitration but is a dispute resolution body constituted by the regulatory
scheme to enforce the rules created by that scheme.
A similar finding is warranted in respect of the Arbitration Tribunal. Whether parties may appeal
a DRC decision, to which body, and enjoying what powers is not left up to the parties to the
dispute to determine. The rules do so. SAFA appoints the arbitrator from its panel. The Arbitration
Tribunal is an appellate dispute settlement body forming part of the regulatory scheme to enforce
the rules of that scheme. The fundamental features of private arbitration are lacking.
It may be contended that although the institutions of dispute settlement are created and
compelled by the regulatory scheme, they are nevertheless a form of private arbitration because
the parties agree to participate in these associations, and the rules, including dispute settlement,
flow from agreement.
That contention cannot be accepted because, as I have explained, membership of the
associations that make up the institutional framework of professional football are not in any real
sense elective. FIFA, SAFA and the NSL have assumed exclusive competence to regulate
professional football in South Africa. Players and clubs must join to participate, and on terms they
are not free to determine on a consensual basis. The dispute settlement bodies are an integral
part of this regulatory scheme. How they are constituted, what disputes they determine, and with
what rights of appeal flow not at all from voluntary adoption but coerced regulatory fiat. That is
the very opposite of private arbitration.
There is a final submission made by Mr Redman SC, who appeared with Mr Tshikila, for the NSL
that I must consider. They submitted that section 40 of the Arbitration Act is of application, and
thus, even if the regulatory scheme is one constituting public powers, it may still reference an
arbitration that is made subject to the Arbitration Act and its limited review jurisdiction under
section 33.
Section 40 provides that the Arbitration Act applies to every arbitration under any law passed
before or after the commencement of the Arbitration Act, as if the arbitration were pursuant to an
arbitration agreement and as if that other law were an arbitration agreement.
The question is whether the referral to the Arbitration Tribunal in the Handbook and SAFA
Statutes is an arbitration under any law? In my view it is not and for two principal reasons. First,
for the reasons given, compulsory appellate dispute settlement under the Handbook and SAFA
Statutes lacks the defining characteristic of an arbitration. For the purposes of section 40, there
must be an arbitration provided for under the law. The Arbitration Tribunal is not a species of
arbitration.
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Second, the Handbook and the SAFA Statutes are not law. The Interpretation Act 33 of 1957
defines a law to mean any law, proclamation, ordinance Act of Parliament or other enactment
having the force of law. I do not consider the Handbook and SAFA Statutes to be enactments
having the force of law. PAJA in defining administrative action distinguishes an organ of state
exercising a public power in terms of legislation and a juristic person exercising a public power in
terms of an empowering provision. For reasons already given, a private entity may enjoy powers
under its domestic statutes that amount to administrative action. Such private statutes are
empowering provisions. But they do not constitute an enactment. An enactment is an act of law
making by an organ of state. Hence the law referred to in Section 40 does not include the internal
rules under which a private entity defines its competences .
I am of the view that the decision of Mr Cassim is administrative action, and unlike the position in
Sidumo, I can see no reason why the regulatory powers of FIFA, SAFA and the NSL, which
includes their dispute settlement provisions (as I have found) should not permit of the application
of the public law disciplines of PAJA.'
[68] It is evident from the foregoing that this Court has ample latitude to determine
whether an exercise of power is public or if the performance is private in nature. As a
result, in determining the reach of administrative law, the Court is not bound by rigid
categories but possesses the scope to evaluate the specific context in which the power
was exercised. Consequently, little wonder the applicant's founding affidavit
inadvertently reveals that the respondents' actions constitute administrative action and
that the fourth respondent is an administrative body. Furthermore, it is also not
surprising that the founding affidavit fails to state pertinently that PAJA is inapplicable to
the merits of this case.
the merits of this case.
[69] From the foregoing it is clear as day light that the sanction that was imposed by the
fourth respondent is indeed an administrative action as contemplated in section 1 of the
Act exercised by an administrative body. Therefore, if an exercise of function
constitutes administrative action, PAJA is applicable to the merits of this matter and
cannot be bypassed. Thus, the applicant cannot bypass PAJA to rely directly on the
Constitution or the common law. Indeed, a legality review is a safety net to act as a
measure of last resort where the law allows for no other measure to challenge to the
exercise of power.
23
Alternative relief
[70] It is well-established that section 7(2)(a) of PAJA precludes a court from reviewing
an administrative action unless any internal remedy provided for in any other law has
first been exhausted. In light of the foregoing, it is evident that the applicant failed to
exhaust the internal remedies available to him prior to instituting these proceedings, as
he believed that his application falls within the ambit of legality review. Paragraph 50.7
of the Constitution of SASCOC and Article 35 of the Code of Ethics of the ucr set out
the internal remedies available to the applicant.
[71] Consequently, the inquiry shifts to whether this Court, despite the aforementioned
findings, remains competent to adjudicate the substantive merits of the application. I am
of the view that it will not be appropriate at this stage to engage the merits of the
application. The rationale for this restraint is that, should the applicant subsequently
elect to pursue an alternative remedy, a prior determination on the merits by this Court
would inevitably give rise to an apprehension that the dispute has been prejudged.
[72] Consequently, it is untenable under these circumstances to engage with the merits
of the application. Furthermore, the applicant has failed to establish any exceptional
circumstances that would justify this Court departing from the general rule to adjudicate
upon the substantive issues.
Conclusion
(73] The fourth respondent submits that the applicant's case was fundamentally without
merit. Consequently, there is sufficient justification to mulct the applicant in punitive
costs and to order that his legal representatives be held liable for such costs, de bonis
propriis, jointly and severally with the applicant.
[74] Regarding the fourth respondent's submission that a punitive cost order is
warranted, it is well-established that the Court must have regard to the conduct and
reasonableness of the litigation. While the application may not be characterised as
reasonableness of the litigation. While the application may not be characterised as
strictly frivolous or vexatious, it was nonetheless pursued in the face of settled adverse
precedent, without any persuasive argument for a departure therefrom. Such
24
persistence, despite clear authority to the contrary, constitutes a material factor in
determining the appropriate scale of costs. It is as well to remind oneself at this stage
that a court is a forum where a party that feels aggrieved should feel free to seek
redress, provided there is a live issue to be determined.
[75] While the fourth respondent's prayer for costs is compelling-especially in light of
the discrepancies in the applicant's case and the settled nature of the law-the Court
must acknowledge that the issues raised were, at the very least, arguable. Absent a
finding of mala tides or gross misconduct on the part of the legal representatives, a
departure from the ordinary scale of costs is not justified.
[76] In the results, I make the following order:
Order
[77] The application stands to be dismissed with costs, costs on the scale as between
party and party to be taxed on scale C, the costs to include costs of two counsel where
so employed.
I agree and it is so ordered.
CN. Nziweni
Judge of the High Court
JD. L~ule~ ---· _/
Judgeof~ -C~o_u_rt __ ___.-
APPEARANCES
For the Applicant
Instructed by
For the Fourth Respondent:
Instructed by
Adv Botes
Hills Incorporated
jaco@hillsincorporated.co.za
Adv Van Niekerk
Farrell Incorporated
oetricia@fan:ell,co.za
dunstan@farrell.co.za
25