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Jockey Club of South Africa v Forbes (662/91) [1992] ZASCA 237; 1993 (1) SA 649 (AD); [1993] 1 All SA 494 (A) (1 December 1992)

80 Reportability
Administrative Law
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Brief Summary

Disciplinary Proceedings — Horse Racing — Imposition of fine for doping violation — The Jockey Club of South Africa imposed a fine of R10,000 on trainer Alan Forbes for an alleged doping infraction after a horse trained by him tested positive for Naproxen. Forbes contested the fine, arguing procedural irregularities and the need for analysis of a reference specimen. The Witwatersrand Local Division ruled in Forbes' favor, voiding the fine and ordering repayment. The Jockey Club appealed the decision. The court held that the disciplinary process must adhere to the rules and principles of fair play, and that the imposition of the fine was invalid due to procedural deficiencies.

Comprehensive Summary

Summary of Judgment


1. Introduction


This matter concerned an appeal in the Supreme Court of South Africa (Appellate Division) arising from disciplinary action taken by a private sporting regulator, The Jockey Club of South Africa. The proceedings ultimately turned on whether a domestic tribunal, acting under a contractual disciplinary regime, had applied the correct internal rule when prosecuting a licensed horse trainer for an alleged “doping” contravention and whether the trainer was procedurally confined to bringing the challenge under Rule 53 of the Uniform Rules of Court.


The appellant was The Jockey Club of South Africa (a voluntary association controlling organised horse racing through licensing and disciplinary powers). The respondent was Mr Alan Forbes, a licensed horse trainer bound contractually by the Club’s constitution and rules. The dispute concerned the validity of the imposition and retention of a total fine of R10 000 (two fines of R5 000 each, later reinstated as R10 000 in aggregate), which Forbes paid under protest to avoid being “warned off” and losing his livelihood.


Procedurally, Forbes successfully approached the Witwatersrand Local Division by notice of motion for an order setting aside the fine(s) and compelling repayment. The Jockey Club opposed and initially sought to have Forbes’s application struck as an “irregular step” on the basis that it should have proceeded under Rule 53 rather than ordinary motion proceedings under Rule 6. That Rule 30 application was dismissed by Hartzenberg J. The main application was then decided on the merits by Van der Merwe J, who granted relief in Forbes’s favour. The Jockey Club appealed to the Appellate Division, primarily persisting with the Rule 53 procedural objection and, on the merits, defending the correctness of the charges framed under its rules.


The general subject-matter was the enforcement of anti-doping rules in horse racing, specifically the interpretation and application of Rules 78.7(a) and 78.8 of The Jockey Club’s rules after amendments introduced in March 1988 to tighten sample-splitting and confirmatory testing procedures.


2. Material Facts


The material and largely undisputed background facts were that the relationship between Forbes and The Jockey Club was contractual. When Forbes applied for and received a trainer’s licence, he accepted that he would be bound by the Club’s constitution and rules, including disciplinary procedures and penalties. The rules created a multi-stage disciplinary process: an initial enquiry and hearing by a stipendiary stewards’ board (the “Board”), an appeal (effectively a rehearing) to the relevant Local Executive Stewards (“LES”), and a further appeal (also effectively a rehearing) to the Head Executive Stewards (“HES”).


It was common cause that, in exercising disciplinary powers, The Jockey Club was obliged to act in accordance with its rules and constitution and to comply with recognised requirements of fairness, including honest and impartial conduct, a proper hearing, and an active investigation into the truth of allegations (as set out in Turner v Jockey Club of South Africa).


After an earlier 1985 Naproxen-related matter involving Forbes (resulting in an acquittal on appeal and a later HES conclusion that the analyst’s work had been unsatisfactory), The Jockey Club amended Rule 78 in March 1988. A key amendment introduced a split-sample procedure: when a urine specimen is taken from a horse, it is split into an initial specimen (sent for local analysis) and a sealed reference specimen (retained and, if demanded, sent for analysis by another laboratory selected from a panel). The amended rules also created an irrebuttable effect for a certificate issued by the reference analyst regarding the reference specimen’s result.


Two later incidents were central. On 7 December 1988, a urine sample from a winning horse trained by Forbes, Fastoll, was taken. The local laboratory reported that the initial specimen tested positive for Naproxen. Forbes demanded that the reference specimen be analysed by another laboratory and also sought additional materials (including a residue from the initial specimen and access to the local laboratory’s working papers), which were refused. The reference specimen was analysed at an English laboratory designated through the Club’s procedure; it also reported Naproxen. Forbes was charged under Rule 78.1(a) with an alternative charge under Rule 78.7(a). At the Board hearing on 10 August 1989, Forbes contested both the merits (alleging malicious addition of Naproxen after sampling) and the framing of the alternative charge, contending it should have been under Rule 78.8 rather than Rule 78.7(a). He also sought to cross-examine the Club’s analyst regarding the initial specimen’s analysis. The Board rejected Forbes’s contentions, relied on the rule deeming the reference laboratory certificate conclusive, convicted Forbes under Rule 78.7(a), and fined him R5 000.


While those proceedings were ongoing, a second incident arose involving another winning horse trained by Forbes, Northern Sheik. In April 1989 the initial specimen allegedly tested positive for Naproxen. Again Forbes demanded access to additional materials and further requested that the reference specimen be tested not only for Naproxen but also for its metabolites, contending that absence of metabolites would indicate post-sampling addition rather than ingestion by the horse. He also provided documentary material aimed at raising suspicion of tampering. The outcome was again a conviction under Rule 78.7(a) and a fine of R5 000.


Forbes appealed both matters to the LES, which heard them together. The LES concluded that Forbes had been victimised and had played no part in administering Naproxen, but nonetheless upheld the convictions under Rule 78.7(a) and reduced the fines so that the total was R5 000. Forbes appealed further to the HES, which dismissed the appeals and, without warning Forbes that it intended to do so, reinstated the original fines (resulting in a total of R10 000).


Forbes paid the fines under protest because non-payment within 28 days would have exposed him to warning-off. In February 1990, he instituted motion proceedings seeking to set aside the finding of a contravention under Rule 78.7(a) and repayment of the fine(s). The Jockey Club’s opposition was notably not directed to a factual refutation of Forbes’s substantive contentions about the scope of the enquiry under the correct rule, but rather relied substantially on procedural points (Rule 53) and on the Club’s internal constitutional provision stating that the HES’s interpretation of the constitution and rules was “final and conclusive”.


3. Legal Issues


The appeal required determination of two principal legal questions, one procedural and one substantive.


The procedural issue was whether Forbes’s application was fatally defective because, in substance, it sought review-type relief and therefore had to be brought under Rule 53 (and, relatedly, whether Rule 53 was peremptory so that departure from its procedure was not permitted). This issue involved a question of procedural law and the application of procedural rules to the form in which relief was sought.


The substantive issue was the interpretation and correct application of The Jockey Club’s anti-doping rules, specifically whether—once a split sample had been taken and both initial and reference analyses existed—the trainer could properly be charged and convicted under Rule 78.7(a) (which referred to “an analytical test”), or whether the matter necessarily fell under Rule 78.8 (which referred to “the analytical tests of the initial and reference specimens”). This was primarily a question of law (interpretation), with significant consequences for how the tribunal was required to investigate and adjudicate the underlying factual defence advanced by Forbes.


A further issue raised by The Jockey Club was whether the courts were precluded from interfering because the merits of such disciplinary determinations were contractually reserved for final decision by the HES, and whether the Club’s constitutional clause making the HES’s interpretation “final and conclusive” ousted judicial interpretation. These issues concerned the application of law to the contractual setting of domestic tribunals and the court’s review power in cases of jurisdictional or rule-based error.


4. Court’s Reasoning


The court first addressed the procedural argument based on Rule 53. It accepted for purposes of argument (with reservations) that the relief sought could be viewed as akin to review relief and further assumed (also with reservations, and with reference to Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid-Afrika en Andere) that Rule 53 could extend to domestic tribunals and was not confined to public-law review. Even on those assumptions, however, the court held that The Jockey Club’s argument failed because it depended on establishing that Rule 53 was strictly peremptory in the sense that non-compliance was necessarily fatal.


In analysing the purpose and structure of Rule 53, the court emphasised that the rule exists to facilitate review proceedings, especially by enabling an applicant who lacks the record or reasons to obtain them and, after seeing the record, to supplement the founding papers without an amendment application. The court characterised Rule 53 as primarily beneficial to applicants rather than a mechanism designed to “shackle” them. It relied on the general principle that rules of court are intended to secure inexpensive and expeditious litigation rather than to be observed for their own sake (citing Federated Trust Ltd v Botha), and endorsed the view in S v Baleka and Others that Rule 53 was not intended to be the sole method by which administrative or quasi-judicial decisions might be attacked. The court also referred to South African authority where administrative decisions were challenged successfully without resort to Rule 53, including Administrator, Natal and Another v Sibiya and Another, Coin Security Group (Pty) Ltd v Smit N.O. and Others, and Administrator, Transvaal, and Others v Traub and Others. It regarded the English House of Lords decisions in O’Reilly and Others v Mackman and Others and Cocks v Thanet District Council as distinguishable because English Order 53 (unlike South African Rule 53) operated within a public-law framework and did not apply to non-statutory domestic tribunals acting contractually; it noted Law v National Greyhound Racing Club Ltd in this regard.


Applying those principles to the facts, the court held that insistence on Rule 53 in this case would have been sterile formalism. Forbes already had the relevant records, knew the decisions, and could formulate his complaint fully; there was no practical need for the machinery compelling production of the record or enabling supplementation after receipt. The Jockey Club had not been prejudiced by the use of Rule 6 time periods, particularly given the nature of its response and the lack of additional documentation required. The court therefore held that the matter was properly considered on its merits.


Turning to the substantive dispute, the court narrowed the decisive question to whether the charges were correctly framed under Rule 78.7(a). It reasoned that if Rule 78.7(a) was applicable, then the Board and appeal bodies would have been correct to treat the English reference laboratory certificates as conclusive and Forbes would fail. If, however, Rule 78.8 was the only appropriate rule, the Jockey Club would fail because the tribunals would have proceeded on the wrong basis and thereby misconceived the proper scope of enquiry.


The court dismissed, as without merit on the facts of the case, the argument that the court could not interfere because the merits were reserved for final determination by the HES. It reasoned that charging under the wrong rule would entail a fundamental misconception of the scope of the enquiry and a focus on the wrong evidential material, amounting to an error as to jurisdiction. The court noted that such an error was, correctly conceded by counsel for the Jockey Club, reviewable by a court. The court also rejected reliance on the Club’s constitutional clause purporting to make the HES’s interpretations final and conclusive because the HES had not, on the evidence, articulated any particular interpretative reasoning; the chairman’s affidavit was confined to general assertions and did not supply a factual basis for the ouster argument.


In interpreting Rules 78.7(a) and 78.8, the court adopted a contextual reading of Rule 78 as a whole, including the 1988 amendments. It emphasised that the amended regime introduced the split sample procedure specifically to ensure integrity and to render the reference analyst’s certificate conclusive, while leaving the initial analysis without an equivalent deeming provision. Against this background, Rule 78.8 was understood as creating liability for a trainer where both initial and reference analyses disclosed the prohibited substance in the specimen taken from the horse. The court stressed that the offence concerned the presence of the substance in the specimen, with the two analyses constituting the contemplated evidentiary basis; because only the reference certificate was irrebuttably deemed correct, the structure of Rule 78.8 necessarily contemplated that the initial analysis could be proved and challenged.


By contrast, Rule 78.7(a) referred in unambiguous terms to “an analytical test” and did not cater for the situation where two tests had been performed under the split-sample procedure. The court reasoned that, once a confirmatory (reference) analysis had been demanded and obtained, it would be inconsistent with the careful drafting and purpose of the amended rules to allow the Club simply to charge under Rule 78.7(a) and thereby avoid the dual-test structure and the consequences that flowed from Rule 78.8.


The court identified multiple absurdities that would follow from the Jockey Club’s proposed interpretation. It highlighted that, on that approach, a trainer could be prosecuted on either the initial or the reference test alone irrespective of the other result, and counsel for the Jockey Club was driven to concede that even contradictory findings (substance A in the initial, substance B in the reference) could permit prosecution under Rule 78.7(a) for either or both. The court viewed this as demonstrating that the interpretation would undermine the split-sample regime and render the right to demand a confirmatory analysis effectively illusory: an adverse reference result would be unchallengeable, while a favourable reference result would not necessarily exculpate the trainer if the Club could still proceed on the initial test alone.


On that reasoning, the court concluded that Forbes’s contention was correct: he should not have been charged under Rule 78.7(a) in circumstances where the reference analysis had been invoked and performed; the applicable rule was Rule 78.8. Because the matter had been pursued under the incorrect rule, the Board and the subsequent appeal bodies had proceeded on a fatally misconceived basis, which was decisive against the Jockey Club.


The court noted that the contrary interpretation adopted in Roy Robert Magner v The Jockey Club of South Africa and Others (unreported, Witwatersrand Local Division) was incorrect.


5. Outcome and Relief


The Appellate Division dismissed the appeal and upheld the Witwatersrand Local Division’s order setting aside the imposition of the fine(s) and requiring repayment to Forbes. The result was that the disciplinary penalties founded on the convictions under Rule 78.7(a), in the two matters involving Fastoll and Northern Sheik, could not stand.


The appeal was dismissed with costs, including the costs consequent upon the engagement of two counsel. The court declined to award attorney-and-client costs on appeal, holding that although The Jockey Club’s stance had put Forbes to additional expense, the matter did not warrant a special costs order in the absence of bad faith or frivolity.


Cases Cited


Turner v Jockey Club of South Africa 1974 (3) SA 633 (A)


Theron en Andere v Ring van Wellington van die NG Sendinqkerk in Suid-Afrika en Andere 1976 (2) SA 1 (A)


Federated Trust Ltd v Botha 1978 (3) SA 645 (A)


S v Baleka and Others 1986 (1) SA 361 (T)


Motaung v Mukubela and Another NNO; Motaung v Mothiba NO 1975 (1) SA 618 (O)


Adfin (Pty) Ltd v Durable Engineering Works (Pty) Ltd 1991 (2) SA 355 (C)


Administrator, Transvaal, and Others v Traub and Others 1989 (4) SA 731 (A)


Coin Security Group (Pty) Ltd v Smit N.O. and Others 1992 (3) SA 333 (A)


Administrator, Natal and Another v Sibiya and Another 1992 (4) SA 532 (A)


O’Reilly and Others v Mackman and Others [1983] UKHL 1; [1983] 2 AC 237 (HL)


Cocks v Thanet District Council [1983] 2 AC 286 (HL)


Law v National Greyhound Racing Club Ltd [1983] 1 All ER 300 (CA)


Roy Robert Magner v The Jockey Club of South Africa and Others (unreported, Witwatersrand Local Division, 5 March 1992, case no 30069/91)


Legislation Cited


No legislation was cited in the judgment.


Rules of Court Cited


Uniform Rules of Court: Rule 6


Uniform Rules of Court: Rule 30


Uniform Rules of Court: Rule 53


Held


The court held that Rule 53 is not invariably mandatory in the sense contended for by The Jockey Club; it is a facilitative procedure and an applicant is not, in every case, fatally barred from obtaining review-type relief merely because proceedings were instituted under Rule 6 rather than Rule 53, particularly where the record is already available and no prejudice is shown.


On the merits, the court held that where both the initial and reference analyses were performed under the amended split-sample regime in Rule 78, The Jockey Club could not properly proceed against a trainer under Rule 78.7(a) (which contemplates a single analytical test). The applicable provision was Rule 78.8, which contemplates both initial and reference analyses and thereby preserves the possibility of challenging the initial analysis while treating the reference certificate as conclusively correct.


Because Forbes was charged and convicted under the wrong rule, the disciplinary bodies misconceived the scope of the enquiry; this constituted a reviewable jurisdictional-type error, with the result that the fines imposed on Forbes could not stand and had to be repaid. The Jockey Club’s appeal was dismissed with costs (including the costs of two counsel).


LEGAL PRINCIPLES


A rule of court such as Uniform Rule 53 is to be construed purposively in its procedural context. It is directed at facilitating the orderly and expeditious prosecution of review proceedings—particularly by enabling access to the record and allowing supplementation—rather than operating as an inflexible technical barrier in all circumstances where review-like relief is sought.


South African courts may determine the validity of administrative or quasi-judicial decisions in motion proceedings not brought under Rule 53, where the circumstances do not require invocation of Rule 53’s record-producing and supplementation mechanisms and where no material prejudice is demonstrated by the respondent.


In the setting of a contractual domestic tribunal, a tribunal’s fundamental misconstruction of its own rules—in particular, proceeding under an inapplicable rule so as to misconceive the proper scope of the enquiry and the relevant evidential issues—may constitute an error that is susceptible to judicial interference (characterised in the judgment as an error as to jurisdiction).


Where a disciplinary rule is amended to create an integrated procedural regime (including split-sampling and conclusive evidentiary effects for certain certificates), interpretation must respect the structure and purpose of the amended scheme. An interpretation producing internal incoherence or rendering core procedural protections or mechanisms illusory will not be adopted where the language and context indicate a coherent alternative construction.

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[1992] ZASCA 237
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Jockey Club of South Africa v Forbes (662/91) [1992] ZASCA 237; 1993 (1) SA 649 (AD); [1993] 1 All SA 494 (A) (1 December 1992)

Case Number 662/91 /al
IN THE SUPREME COURT OF SOUTH
AFRICA
(APPELLATE DIVISION)
In the matter between:
THE
JOCKEY CLUB OF SOUTH AFRICA Appellant
and
ALAN FORBES Respondent
CORAM
: CORBETT CJ, VAN HEERDEN, E.M. GROSSKOPF,
NIENABER JJA, et KRIEGLER AJA
DATE OP HEARING
: 16 November 1992
DATE OF JUDGMENT
: 1 December 1992
JUDGMENT
KRIEGLER AJA/
2 KRIEGLER AJA:
The appellant is The Jockey Club of
South Africa, a voluntary association that controls all organized horse racing
in the country.
This it does through a system of licensing, which requires all
active participants in horse racing to be licensed in terms of its
constitution
and rules. The respondent, Mr Alan Forbes, is licensed with the appellant as a
trainer of race horses. The parties are
henceforth referred to as The Jockey
Club and Forbes respectively. This appeal concerns a fine of R10 000,00 imposed
on Forbes by
The Jockey Club, acting through one of its organs, for an alleged
infraction of its rules. Forbes paid the fine under protest but
then
successfully applied on notice of motion to the Witwatersrand Local Division for
an order (a) voiding the imposition of the
fine and (b) for its repayment. The
Jockey Club now challenges that order and a
3 concomitant award of costs.
The Jockey Club's constitution affords it corporate capacity, declares its
primary object to be the promotion and maintenance of honourable
practice in
horse racing in South Africa and invests it with executive, regulatory and
disciplinary powers. Its principal executive
organ - and the ultimate locus of
its powers - is a body of nominated and elected members called the Head
Executive Stewards ("the
HES"). In each of five racing districts there is a
local controlling body of elected and nominated members, entitled the Local
Executive
Stewards. This case concerns the Transvaal and Orange Free State Local
Executive Stewards ("the LES"). In terms of the constitution
the HES is
empowered to appoint stipendiary stewards to officiate at any race meeting
falling under the latter's jurisdiction. Acting
in terms of that power the HES
appointed a body called the
3 concomitant award of costs.
The Jockey Club's constitution affords it corporate capacity, declares its
primary object to be the promotion and maintenance of honourable
practice in
horse racing in South Africa and invests it with executive, regulatory and
disciplinary powers. Its principal executive
organ - and the ultimate locus of
its powers - is a body of nominated and elected members called the Head
Executive Stewards ("the
HES"). In each of five racing districts there is a
local controlling body of elected and nominated members, entitled the Local
Executive
Stewards. This case concerns the Transvaal and Orange Free State Local
Executive Stewards ("the LES"). In terms of the constitution
the HES is
empowered to appoint stipendiary stewards to officiate at any race meeting
falling under the latter's jurisdiction. Acting
in terms of that power the HES
appointed a body called the
4 Transvaal and Orange Free State Stipendiary
Stewards Board ("the Board").
The relationship between the parties is contractual. When Forbes applied for
a trainer's licence he acknowledged that, upon the grant
thereof to him, he
would be bound by the constitution and rules. In particular he accepted the
provisions relating to disciplinary
procedures and penalties for infractions of
the rules. In essence the rules relating to suspected contraventions thereof
provide
for a four-stage procedure. In the event of a suspected infringement the
Board, acting with authority delegated to it by the HES,
conducts an enquiry. If
appropriate the second stage then ensues where the Board adopts a quasi-judicial
role: it formulates a charge
based on its findings during the enquiry and
notifies the person(s) concerned of the charge. The Board then conducts a
hearing at
5 which it is both prosecutor and judge, there being no
pro
forma
complainant. The person accused is afforded a right of audience,
including the right to adduce oral and documentary evidence. If
a
conviction follows the Board may impose any one of a number of penalties,
including the imposition of a fine. The accused is then
entitled to appeal to
the LES against both conviction and sentence. In effect the appeal amounts to a
rehearing. If still dissatisfied,
the accused can take the matter on appeal to
the HES on the merits or the sentence and there, too, he is entitled to a
rehearing.
It is common cause that the appellant, in exercising such disciplinary
powers, is obliged (i) to act in accordance with its rules
and constitution;
(ii) to discharge its duties honestly and impartially; (iii) to afford persons
charged a proper hearing, including
the opportunity to adduce evidence and to
contradict or correct
6 adverse statements or allegations; (iv) to listen
fairly to both sides and to observe the principles of fair play; (v) to make
fair
and
bona fide
findings on the facts; and (vi) to conduct an active
investigation into the truth of allegations made against the person charged.
(See
Turner v Jockey Club of South Africa
1974 (3) SA 633
(A) at 646F-H
and 652H - 653A.)
In conformity with its primary object of maintaining honourable practice in
horse racing, the appellant
inter alia
takes steps to prevent what is
colloquially called "doping", i.e. the administration of drugs or other
substances to race horses.
To this end rule 78 of the appellant's rules makes
detailed provision for a number of interrelated measures. It commences with a
broad prohibition against the administration of any one of a compendious list of
substances to a horse which has been entered for
a race. The list of
7
prohibited substances includes anti-inflammatory drugs. The rest of rule 78 then
establishes an elaborate system of inter-meshing
measures designed to ensure
enforcement of the primary prohibition. Basically it empowers the appellant's
officials (i) to take biological
samples from race horses; (ii) to analyse such
samples for the presence of prohibited substances and (iii) to prosecute the
owner
or trainer of a horse found to have been "doped". The procedures to be
followed will be detailed later. At this juncture it will
suffice to say that
rule 78 includes deeming provisions and presumptions that ease the burden of The
Jockey Club's officials in a
prosecution against those responsible for a horse
suspected of having been "doped".
Forbes was first alleged to have fallen foul of rule 78 in 1985 when a urine
specimen taken from a horse trained by him tested positive
for the
8 presence
of an anti-inflammatory drug (with some analgesic qualities) called Naproxen.
The upshot on that occasion was an acquittal
on appeal to the LES and,
ultimately, a finding by the HES that the appellant's analyst had not done his
work satisfactorily. In
March 1988, after that chapter had ended (and quite
possibly a case of
post hoc propter hoc
) the HES amended rule 78 in a
number of respects. Principally the sampling procedure was tightened up by
providing that a urine specimen
taken from a horse is to be split in two there
and then, the one specimen (called the "initial specimen") to be sent to the
laboratory
for analysis and the other (called the "reference specimen") to be
kept under seal by other officials of The Jockey Club. If the
initial specimen
tests positive for a prohibited substance the horse's owner or trainer can
demand that the sealed reference specimen
be sent for analysis, at his
9
cost, by another laboratory selected by him from a panel
compiled by The Jockey Club. Rule 78, prior to the amendment, also provided
for
a second analysis at the request and cost of the owner or trainer, but only one
sample used to be taken from the horse and was
sent to the local laboratory; if
a specimen thereof proved positive, it was the analyst who sent a further
specimen to a laboratory
abroad for analysis.
The change in the sampling procedure occasioned a number of secondary
amendments to rule 78. One amendment in particular was to prove
crucial in
subsequent disciplinary proceedings against Forbes. Rule 78.8, both before and
after the amendment, rendered a trainer
guilty of a contravention of the rules
if a prohibited substance was found in a specimen taken from a horse trained by
him. But whereas
the rule previously referred to a single test and a single
10
specimen the rule as amended refers to "
the
analytical
tests of the initial
and
reference specimens". Rule 78.7.a (which was
also amended) is largely co-terminous with rule 78.8. However, where rule 78.8
has the
phrase quoted, rule 78.7.a refers to "an analytical test of the specimen
taken in terms of these rules." The significance of the
amendments to rule 78
and more especially the difference between rules 78.7.a and 78.8 will become
apparent in due course.
On 7 December 1988 a urine sample was taken from a horse named Fastoll,
trained by Forbes, shortly after it had won a race. Some three
weeks later the
laboratory reported that analysis of the initial specimen had revealed the
presence of Naproxen. The Jockey Club's
disciplinary machinery was set in
motion, commencing with an enquiry by the Board. Forbes, upon being notified of
the analysis report,
11
demanded that the reference specimen be submitted for analysis
by a laboratory of his choice. He also called for a sample from the
residue of
the initial specimen and for access to the laboratory working papers relating
thereto. His demands were refused and the
reference specimen was sent to a
laboratory in England designated by The Jockey Club. In due course that
laboratory also reported
the presence of Naproxen and on 2 March 1989 Forbes was
formally notified of a charge against him under rule 78.1. a, i.e. that he
had
been a party to the administration of Naproxen to the horse Fastoll. On 10
August 1989 he appeared at a hearing of the Board
where he was advised that he
was being charged in the alternative under rule 78.7 .a . He not only put up a
vigorous defence on the
merits, contending that the Naproxen had been
maliciously added to the urine sample after it had been drawn from the horse,
but stoutly
maintained
12
that the alternative against him should be framed under rule
78.8 and not under rule 78.7. a. The latter contention was not a mere
technicality but was intimately related to his defence on the merits. He
maintained that the presence of Naproxen had to be established
not only in the
reference specimen but also in the initial specimen. He also demanded the right
to cross-examine The Jockey Club's
analyst in order to challenge the correctness
of his analysis of the initial specimen as also to advance his case that the
Naproxen
had been maliciously added to the urine sample. At the same time he
handed in a substantial body of expert evidence in documentary
form in support
of his defence. The Board, rejecting Forbes' contentions
in toto
and
relying on a provision in the rules rendering a certificate relating to the
analysis of the reference specimen irrebuttably correct,
brought in a conviction
under
13
rule 78.7.a and imposed a fine of R5 000,00.
In the interim
and while the Fastoll proceedings were in progress, the initial specimen drawn
from another winning horse trained by
Forbes, named Northern Sheik, allegedly
tested positive for the presence of Naproxen in April 1989. Once again the
disciplinary machinery
was set in motion and, save in one respect to be
mentioned in a moment, followed substantially the same course. The charge was
once
again framed under rule 78.1.a with an alternative under rule 78.7.a; once
again Forbes raised the defence of malicious subsequent
admixture of the
offending drug and contended that the appropriate alternative charge should be
framed under rule 78.8. In the preliminary
correspondence preceding the Northern
Sheik hearing Forbes, in advancing his defence of malicious admixture, made the
same demands
as in the Fastoll inquiry but added the specific demand that the
reference
14 specimen be tested, not only for the presence of Naproxen, but
also for its metabolites. This, he pointed out, was necessary as
the absence of
the metabolites of Naproxen in a urine specimen would establish that the
offending substance had not passed through
the horse's system, but had been
added later. In addition he tendered a substantial body of documentary evidence
in an attempt to
raise a suspicion that the one or the other or both specimens
had been tampered with. The result was the same: a conviction under
rule 78.7.a
and a fine of R5 000,00.
Forbes then took both cases to the LES, which heard them together. His
notices of appeal incorporated by reference the voluminous
documentation that
had been submitted to the Board at its two hearings. The LES came to the
conclusion that in both instances the
respondent had been victimized and had
played no part in the
15 administration of the Naproxen. Nevertheless it
upheld the convictions under rule 78.7.a but reduced the fines to R5 000,00 in
all. Forbes appealed to the HES, in the event with no success. His factual and
legal contentions, submitted in writing, were rejected;
his appeals were
dismissed and, without advising the respondent that it was contemplating doing
so, the HES reinstated the original
fines. Forbes then paid the fines under
protest. He had little choice: under the rules a failure to pay a fine within
the time limit
stipulated (28 days) would have rendered him liable to
warning-off, an eventuality which would have deprived him of his living as
a
trainer.
But he was not content to leave matters there. In February 1990, barely a
month after the payment under protest, he launched the motion
proceedings which
have culminated in this appeal. The notice
16 of motion sought an order
setting aside the finding that rule 78.7.a had been contravened and for return
of the fine. In the alternative
there was a prayer for an order declaring that
such finding had not been made in accordance with the rules nor with his
contractual
rights
vis-a-vis
The Jockey Club, and was not binding. This
was followed by a substantive prayer for repayment of the fine of R10 000,
together with
interest from the date it was paid and costs.
Forbes's founding affidavit and annexures comprise 866 pages. They include
the documents submitted to The Jockey Club's three tribunals
and direct a
multi-pronged attack at their procedures and conclusions. In substance his case
amounts to this. In exercising its disciplinary
powers in the two cases, The
Jockey Club failed to comply with any one of the six contractual obligations
admittedly resting upon
it. All three tribunals
17 misconstrued the rules by
holding rule 78.7.a to be applicable, instead of rule 78.8. In the result the
nature and scope of the
enquiries were misconstrued. In particular the Board,
instead of actively investigating whether there had been subsequent tampering
with the urine samples, which would have entailed enquiring into the reliability
and integrity of The Jockey Club's internal procedures,
directed its attention
solely to the certificates relating to the analyses of the reference specimens.
As a further result the Board
failed to consider the evidence produced by the
respondent fairly and impartially, if at all. Furthermore, inasmuch as the
procedure
in the local laboratory was a vital feature in both instances, the
Board's refusal to afford Forbes and his experts access to the
residue of the
urine specimens retained in the laboratory, and to that institution's working
papers, frustrated his
18
attempts to demonstrate that the Naproxen had been added to
the specimens after they had been taken from the two horses. In effect,
so
Forbes contended, the Board had regarded the certificates issued by the English
laboratory (which the rules irrebuttably deem
to be correct) as- the beginning
and the end of their deliberations. The result, so he contended, was that it
failed to bring its
mind to bear on the real subject matter, namely whether the
Naproxen had been administered to the horses or had been added to their
urine
samples.
The Jockey Club's initial response to that case was an application in terms
of rule 30 of the Uniform Rules of Court to have it set
aside as "irregular in
that the relief sought in substance and in fact amounts to a review as
contemplated in rule 53 ... and the
applicant has not utilized the procedure
prescribed by the said rule." Hartzenberg J. dismissed that application
and
19 answering affidavits were then filed. The main deponent was the deputy
general manager of The Jockey Club. He had no knowledge
of either inquiry and
confined himself in the main to an exposition of The Jockey Club's constitution,
rules and sampling procedures.
In dealing with the constitution he drew
attention to clause 3(c) which provides that "(t)he decision of the Head
Executive Stewards
as to the interpretation, intention, meaning and effect of
any of the clauses of this Constitution and rules shall be final and
conclusive."
In response to an allegation by Forbes that there would have been
no point in administering Naproxen to either of the two horses
as both were
sound, the deponent suggested that the drug could have been administered in
order to mask some performance enhancing
substance. No such suggestion had been
made in the course of the two sets of disciplinary proceedings and,
predictably,
20
it elicited an indignant and vehement denial, supported by
cogent scientific evidence. No more need be said about the point. The deponent
proceeded to deny that the disciplinary bodies had in any way failed to act in
due compliance with the rules or with The Jockey Club's
obligation to act
fairly. The only other deponent on behalf of The Jockey Club was the chairman of
the HES, who confined himself
to a terse and generalised statement that the HES
had considered the records of its subsidiary bodies, had "considered and
adjudicated"
on Forbes's appeal and had found against him "on all the arguments
advanced by him." No one on behalf of The Jockey Club joined issue
with Forbes
on the substance of his case. In particular there was no pertinent denial of his
contention that the Board had, in consequence
of its misguided application of
Rule 78.7.a instead of Rule 78.8, failed to apply its mind to the true
21
subject matter of its enquiries and deliberations. The line
adopted by The Jockey Club was a technical/legal one. In the court
a quo
(and indeed in the Rule 30 proceedings) it adopted as its primary stance that an
alleged non-compliance with the provisions of rule
53 of the Uniform Rules of
Court, said to be peremptory, was fatal to Forbes's case. The argument,
succinctly put, was that the relief
sought in the notice of motion rendered the
case in substance one for review of the proceedings before The Jockey Club
tribunals.
Therefore Forbes had to make out a case complying with both the
substantive and procedural requirements of an application for review.
Procedurally any application for review has to be brought under rule 53 whereas
here the ordinary procedure prescribed by rule 6
had been used. The two
procedures differ materially, the use of the wrong rule had prejudiced The
Jockey Club, there
22
was no attempt at condonation and consequently the
application fell to be dismissed. The court
a quo
(Van der Merwe J) rejected the argument but granted
leave to appeal to this court. Here once again The ,
Jockey Club raised the procedural argument as its
main line of defence.
The conclusion to which I have come renders it superfluous to scrutinize the
soundness of each of the steps leading to the ultimate
submission that the
application was fatally defective. For purposes of argument it can be accepted,
albeit with some reservation,
that the relief prayed constituted, whether in
effect or at all, relief tantamount to that afforded by a superior court in the
exercise
of its so-called review jurisdiction. It can further be assumed, once
again with reservations (as to which see
Theron en Andere v Ring van
Wellington van die NG Sendinqkerk in Suid-Afrika en Andere
1976 (2) SA 1
(A)
at 21D-G),
23
that rule 53 extends to decisions of domestic
tribunals and
does not apply only to breaches by
officials of duties imposed on them by
public law.
Nevertheless the argument on behalf of The Jockey
Club cannot prevail. The keystone of that argument
is the contention that the provisions of rule 53
are peremptory. If that contention fails, the
argument falls to the ground. I therefore proceed
to examine its validity. Rule 53 . reads as
follows:
"REVIEWS 53(1) Save where any law otherwise provides, all proceedings to
bring under review the decision or proceedings of any inferior
court and of any
tribunal, board or officer performing judicial, quasi-judicial or administrative
functions shall be by way of notice
of motion directed and delivered by the
party seeking to review such decision or proceedings to the magistrate,
presiding officer
or chairman of the court, tribunal or board or to the officer,
as the case may be, and to all other parties affected
(a)
calling upon such persons
to show cause why such decision or proceedings should not be reviewed and
corrected or set aside, and
(b)
calling upon
the magistrate,
24
presiding officer, chairman or officer, as the case may be, to despatch, within
15 days after receipt of the notice of motion, to
the registrar the record of
such proceedings sought to be correcteed or set aside, together with such
reasons as he is by law required
or desires to give or make, and to notify the
applicant that he has done
so.
(2)
The notice of motion shall set out the decision or proceedings
sought to be reviewed and shall be supported by affidavit setting out
the
grounds and the facts and circumstances upon which the applicant relies to have
the decision or proceedings set aside or corrected.
(3)
The registrar shall make available to the applicant the record
despatched to him as aforesaid upon such terms as the registrar thinks
appropriate to ensure its safety, and the applicant shall thereupon cause copies
of such portions of the record as may be necessary
for the purposes of the
review to be made and shall furnish the registrar with two copies and each of
the other parties with one
copy thereof, in each case certified by the applicant
as true copies. The costs of transcription, if any, shall be borne by the
applicant
and shall be costs in the cause.
(4) The
applicant may within 10 days after
the registrar has made the record
available to
him, by delivery of a notice and accompanying
affidavit,
amend, add to or vary the terms of
the notice of motion and supplement
the
supporting affidavit.
(5) Should the presiding officer, chairman or
25
officer, as the case may be, or any party affected, desire to
oppose the granting of the order prayed in the notice of motion, he
shall
(a) within 15 days after receipt by him of the notice of motion or any amendment
thereof deliver notice to the applicant that he
intends sp to oppose and shall
in such notice appoint an address within 8 kilometres of the office of the
registrar at which he will
accept notice and service of all process in such
proceedings; and
(b) within 30 days after the expiry of the time referred to in sub-rule (4)
hereof, deliver any affidavits he may desire in answer
to the allegations made
by the applicant.
(6) The applicant shall have the rights and obligations in regard to replying
affidavits as set out in rule 6.
(7) The provisions of rule 6 as to set down of applications shall
mutatis
mutandis
apply to the set down of review proceedings."
Not
infrequently the private citizen is faced with
an administrative or quasi-judicial decision
adversely affecting his rights, but has no access
to the record of the relevant proceedings nor any
knowledge of the reasons founding such decision.
Were it not for rule 53 he would be obliged to
26
launch review proceedings in the dark and, depending on the
answering affidavit(s) of the respondent(s), he could then apply to amend
his
notice of motion and to supplement his founding affidavit. Manifestly the
procedure created by the rule is to his advantage in
that it obviates the delay
and expense of an application to amend and provides him with access to the
record. In terms of para (b)
of subrule (1) the official concerned is obliged to
forward the record to the registrar and to notify the applicant that he has done
so. Subrule (3) then affords the applicant access to the record. (It also
obliges him to make certified copies of the relevant part
thereof available to
the court and his opponents. The rule thus confers the benefit that all the
parties have identical copies of
the relevant documents on which to draft their
affidavits and that they and the court have identical papers before them when
the
matter comes
27
to court.) More important in the present context is subrule
(4), which enables the applicant, as of right and without the expense
and delay
of an interlocutory application, to "amend, add to or vary the terms of the
notice of motion and supplement the supporting
affidavit". Subrule (5) in turn
regulates the procedure to be adopted by prospective opponents and the
succeeding subrules import
the usual procedure under rule 6 for the filing of
the applicant's reply and for set down. It is true, as counsel for The Jockey
Club pointed out, that the time periods afforded a prospective opponent under
subrule (5) are longer than those generally allowed
a respondent under rule 6,
viz. 15 days for his notice of intention to defend as against 5 days under rule
6(5)(b) and 30 days for
delivery of answering affidavits as against 10 days
under rule 6(5)(e). In substance however the draftsman of rule 53 has done no
more
28
than to adapt the ordinary procedure under rule 6 to the
special exigencies of a particular kind of application on notice of motion.
An
applicant is still obliged to proceed by notice of motion; the parties to be
joined, cited and served in effect remain unchanged,
save that the person
officially in possession of the record is to be invited to (i) show cause why
the relief sought should not be
granted; and (ii) to transmit the record to the
registrar. Having regard to the special purpose for which the rule was intended,
those two deviations from the ordinary motion procedure are not only logical but
minimal.
The relief sought is to be specified in the notice of motion and the
supporting facts are to be embodied in the founding affidavit.
Those
requirements are
in pari materia
with those of rule 6(1). The time period
afforded a respondent under rule 53(5)(a) for entry of appearance
corresponds
29
with the time allowed under rule 6(13) to any officer of the
State (the most likely if not the invariable target of an application
under rule
53), namely 15 days. And it is not without significance that the time period
under both subrules previously was 14 days
and that they were amended
identically. The circumstance that subrule 53(5)(b) allows a respondent a longer
period to deliver his
answering affidavit than is allowed under rule 6(5)(e) is
of minimal significance and is in any event consistent with the latitude
afforded public officials by rule 6(13). They, as has been mentioned above, are
the usual (if not the invariable) respondents in
review applications.
Counsel for The Jockey Club made much of the
peremptory
language in which rule 53 is couched,
e.g. "all proceedings ... shall be ..."
in subrule
(1) and the repeated use of "shall" in the
succeeding subrules.
Clearly that use of language
30
cannot be overlooked, but equally clearly it is to
be
understood conceptually and contextually. The
primary purpose of the rule is
to facilitate and
regulate applications for review. On the face of
it the rule was designed to aid an applicant, not
to shackle him. Nor could it have been intended
that an applicant for review should be obliged,
irrespective of the circumstances and whether or
not there was any need to invoke the facilitative
procedure of the rule, slavishly - and pointlessly
- to adhere to its provisions. After all:
" (R)ules are not an end in themselves to be observed for their own sake.
They are provided to secure the inexpensive and expeditious
completion of
litigation before the courts ..."
(Per Van Winsen AJA in
Federated Trust Ltd v Botha
1978 (3) SA 645
(A) at 654C-D).
I am in full agreement with the view expressed
by Eloff DJP in
S v Baleka and Others
1986 (1) SA
361 (T) at 397
in fin
to 398A:
31
"Rule 53 was designed to facilitate the review of administrative orders. It
created procedural means whereby persons affected by
administrative or
quasi
-judicial orders or decisions could get the relevant evidential
material before the Supreme Court. It was not intended to be the sole
method by
which the validity of such decisions could be attacked."
I am also in agreement with the observation of
the learned judge
in the succeeding sentence:
"There are numerous decisions in our own Courts in which the validity of
administrative rulings was considered and adjudicated on
in proceedings other
than conventional review proceedings, ..."
(See also
Motaung v
Mukubela and Another NNO;
Motaung v Mothiba NO
1975 (1) SA 618
(0) and
Adfin
(Pty) Ltd v Durable Engineering Works (Pty) Ltd
1991 (2) SA 355
(C) at 368E-H.) The most recent
example is the case of
Administrator, Natal and
Another v Sibiya and Another
[1992] ZASCA 115
;
1992 (4) SA 532
(A)
where an administrative decision to retrench
provincial employees was successfully challenged
without any resort to rule 53. See also
Coin
32
Security Group (Pty) Ltd v Smit N.O. and Others
[1992] ZASCA 55
;
1992
(3) SA 333
(A) and
Administrator, Transvaal, and Others v Tranb and
Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A), likewise cases where administrative decisions
were set aside in proceedings initiated by notice of motion under rule 6.
Counsel for The Jockey Club argued that rule 53 "embodies a protection for
the decision-maker" and that "(p)ublic policy demands that
an attempt to avoid
the protection ... should be regarded as an abuse of the process of the Court."
The only authorities cited in
support of the submission were two House of Lords
judgments (
O'Reilly and Others v Mackman and Others
[1983] UKHL 1
;
[1983] 2 AC 237
(HL)
and
Cocks v Thanet District Council
[1983] 2 AC 286
(HL)). However, those
cases make it plain that our rule 53 and our practice for the review of
decisions by extra-judicial tribunals
differ
toto caelo
from Order 53 of
English practice. Indeed virtually all
33
they have in common is the number. But it is unnecessary to
dwell on the topic. In England the procedure of Order 53 is not applicable
to
reviews of decisions by non-statutory bodies. It falls in the realm of public
law and finds no application in a case such as this,
where the decision under
review was taken by a domestic tribunal purportedly acting under rights
conferred by contract. That is made
plain in all three judgments in
Law.v
National Greyhound Racing Club Ltd
[1983] All ER 300
(CA).
For the rest the argument is based on a literal and selective interpretation
of rule 53 in which perceived benefits thereunder for
a "decision-maker" are
sought to be contrasted with relative disadvantages under rule 6. From the above
analysis of the purpose and
scope of rule 53 and its interrelationship with rule
6 it is apparent that the argument is misdirected. The purpose of rule 53 is
not
to protect the "decision-
34
maker" but to facilitate applications for review and to ensure
their speedy and orderly presentation. Such benefits as it may confer
on a
respondent, in contradistinction to those ordinarily enjoyed by a respondent
under rule 6, are incidental and minor. It confers
real benefits on the
applicant, benefits which he may employ if and to the extent needed in his
particular circumstances.
This case is a good example of the stultification inherent in reading rule 53
as a law of the Medes and Persians, as counsel for The
Jockey Club would have
it. There was no need to cite any particular individual in any specific
capacity: the party whose executive
bodies had allegedly infringed Forbes's
contractual rights -and was holding his money - was The Jockey Club as such.
Forbes was in
possession of the records of the hearings before each of the three
tribunals and
35
needed production of no more to enable him to put his case
fully before the court. He knew what had been submitted to those tribunals,
what
they had decided and could infer on what grounds they had done so. His founding
affidavit set out his complaints in detail and
indicated with precision what his
basic legal contentions were. The nub of the case he advanced was
straight-forward: he had been
charged under the wrong rule and in the result
there had been a consistent failure to consider the substance of his defence and
a
consistent avoidance of an enquiry into the real issue, namely whether the
specimens, when taken from the horses, had contained Naproxen.
By the time the
application was launched in February 1990 The Jockey Club had in any event long
since been fully apprised of every
point made in the founding papers. After the
papers were served The Jockey Club had every opportunity to join issue with
Forbes on
the facts,
36 to furnish reasons for the action taken and to
indicate its stance on the law. The time constraints of rule 6 caused it no
embarrassment:
there were no documents to be traced, no investigations to be
made and the affidavits eventually filed, after the abortive rule 30
proceedings, verged on the laconic. Clearly the provisions of rule 53 were
inapposite and their invocation would merely have resulted
in a fruitless
exercise and the wastage of time and money.
In the circumstances the procedural argument advanced on behalf of The Jockey
Club propounds no more than sterile formalism. The case
was rightly considered
on its merits in the court below and this court will do likewise.
And the only question of substance on the merits is whether the charges were
correctly framed under rule 87.7. a. If they were, the
Board and the
37
two appeal tribunals were correct in concluding that the
English laboratory certificates were conclusive and Forbes must fail. If,
on the
other hand, Forbes is right in saying that the only rule under which he could
have been charged is rule 78.8, The Jockey Club
must fail. In saying that I am
not overlooking two subsidiary points advanced on behalf of The Jockey Club. The
first was that the
decisions of the organs of The Jockey Club cannot be upset by
a court of law as they relate to the merits of the charges which, in
terms of
the contractual regime binding the parties, were reserved for the exclusive and
final determination by the HES. The point
is still-born. If the appropriate rule
was rule 78.8, the Board (and the succeeding tribunals) fundamentally
misconceived the scope
of the enquiries and hearings to be conducted. They would
then have focused on the English certificates to the exclusion of any
38
evidence relating to the initial specimens or the vagaries of
the samples after they had been taken from the horses but before the
specimens
were analysed. That would mean that they looked in the wrong place for the wrong
evidence: a clear case of error as to
jurisdiction. Counsel for The Jockey Club
conceded, rightly, that such an error is indeed subject to judicial review. In
the circumstances
it is unnecessary to consider the interesting - and vexed -
question whether and, if so, when a court of law is entitled to interfere
on
review with a decision "on the merits" by a domestic tribunal, so incisively
discussed by Jansen JA in
Theron en Andere v Ring van Wellington van die NG
Sendinqkerk in Suid-Afrika
supra.
The second point is equally without merit. Relying on clause 3(c) of The
Jockey Club's constitution it was argued that the right to
interpret rule 78
vests exclusively in the HES,
39
ousting judicial interpretation. Inasmuch as the HES does not
purport to have interpreted the rule in any particular way, but confined
itself
to terse generalities in the affidavit by its chairman, the point fails in
initio
for lack of a factual basis. I may add in parenthesis that the
interpretation contended for on behalf of The Jockey Club in this
court differed
from that advanced in the court below and adopted yet another garb when argument
in reply was presented.
In order to interpret rules 78.7.a and 78.8 it is necessary to place them in
their context. Rule 78 as a whole deals with "doping",
commencing with a blanket
provision (rule 78.1.a) rendering it an offence for any person to administer, or
cause or allow to be administered,
or to attempt or connive at the
administration of a prohibited substance to any horse entered for a race. Rule
78.1.b is irrelevant
to the present discussion and can be
40 passed over.
Rule 78.2 then lists, in sweeping and generic terms, a wide variety of
substances and concludes with a hold-all reference
to "any other substance which
cannot be traced to the normal and ordinary feeding and which could by its
nature affect or alter the
racing performance of the horse." (Rule 78.3 renders
The Jockey Club's decision whether a substance has such qualities conclusive.)
Paragraphs a and b of rule 78.4 authorise The Jockey Club to take biological
specimens from a horse within three days of its having
run in a race (par a) or
if it is brought on to a racecourse to take part in a race (par b) , "for
analysis in terms of these rules."
Prior to the amendments introduced in March
1988 the rule referred to "analytical testing by an Analyst appointed by The
Jockey Club."
In addition to the authority granted by rule 78.4 and expressly
nothwithstanding its provisions, rule 78.5
41 authorises The Jockey Club to
take a specimen from any registered horse at any time (and presumably at any
place) "for testing
by an analyst appointed by The Jockey Club." The latter
phrase, in contradistinction to the corresponding phrase in rule 78.4, was
not
amended.
Rule 78.6 then lays down the procedure to be
followed when a
specimen is taken. Paragraph a
entitles an owner or trainer to be present,
to
rinse the receptacles and to witness their sealing
and he is obliged to
add his signature to the
sealing documents. Whether or not he does so,
"the
signature of The Jockey Club official will be
conclusive proof that
the procedure to that point
was correct and regular." In addition there is
a
presumption that the containers and equipment used
were free from
contamination. Paragraph b of rule
78.6 was extensively amended and now makes
detailed
provision for the splitting and handling of a
42
specimen as described earlier. If the trainer
demands
analysis of the reference specimen but
fails to nominate an analyst from The
Jockey Club
panel (sub-par iv and vi), The Jockey Club
nominates the laboratory (sub-par v). The specimen
is then sent to the reference laboratory (sub-par
vii), which is informed what substance was found in
the initial specimen and requires confirmation
(sub-par ix). In terms of sub-par viii a
certificate signed by the reference analyst is
conclusive proof of its result at any enquiry.
Then follows rule 78.7, which contains five
paragraphs and a number of sub-paragraphs. Of
these only par 7.a is directly relevant, although
the respects in which par 7.b differs from it are
of some importance. Rule 78.7.a reads as follows:
"The person responsible for the care, treatment or training of a horse shall
be guilty of a contravention of these rules if an analytical
test of the
specimen taken in terms of
these rules
discloses the presence in that
specimen of any quantity of
43
a substance referred to in Rule 78.2." The words "these
rules", which I have underlined in the quotation, prior to the amendment
referred
to the specimen taken "in terms of Rule 78.4". Paragraph b of rule 78.7
applies to the owner of the horse but, unlike the absolute
liability of the
trainer created by par a, the owner can escape liability if it is found that he
played no part in the "doping".
Sub-pars c, d and e contain provisions which are
not germane to the present discussion.
They are followed by rule 78.8. It is in identical terms with rule 78.7.a
save that it contains the words "if the analytical tests
for the initial and
reference specimens of a specimen" where rule 78.7.a speaks of "an analytical
test of the specimen". That distinction,
to which I will return shortly, lies at
the heart of the debate.
Rule 78.9 provides that the fact that a
44 prohibited substance was
administered by or cm the advice of a veterinary surgeon is no defence while
sub-rules 10, 11 and 12 deal
with matters that need not be considered. It should
be mentioned though that sub-rule 10.a which deals with the disqualification
of
a horse found to have been "doped", was amended in March 1988 so as to refer to
"analysis of
the initial and reference specimens of
a specimen" whereas
previously it had merely mentioned "a specimen".
Clearly the drafting of rule 78 was done with great care and with intimate
knowledge of the intricacies and pitfalls in trying to
bring home a "doping"
charge. Equally clearly the amendments introduced in March 1988 were
specifically designed to ensure the integrity
of the reference specimen and to
put the result thereof beyond debate. The mechanism introduced under sub-rule
6.b and the irrebuttable
presumption under sub-par viii makes
45
that plain. At the same time the amendments to rules 78.4.a
and b, 78.7.a and b and 78.10.a, which deleted a reference to a single
analysis
and substituted either a general reference to analysis "in terms of these rules"
or specific reference to both the initial
and the reference analyses, highlight
the importance of the new wording of rule 78.8.
Turning then to examine that rule, the first
observation to
be made is that its wording does not
seem ambiguous. On the contrary, its
meaning seems
plain: a trainer is automatically guilty of a
contravention
of the rules if both the initial and
the reference analyses disclose that the
specimen
taken from a horse trained by him contain a
prohibited substance.
Not only does the rule
expressly mention both tests but,
significantly,
the offence is the presence of the substance in
the
specimen taken from the horse. Two incriminating
46 analyses do not in themselves constitute the offence, they are only
evidence proof of the presence of the substance in the specimen.
The rule thus
both defines the essential component of the offence and identifies the requisite
evidence. One then sees that rule
78.6.b.viii irrebuttably deems part of that
evidence, viz the reference analysis, to be correct. By contrast there is no
presumption
relating to the analysis of the initial specimen. Whereas the rule
contains several presumptions relating to the propriety of the
drawing of the
specimen from the horse and of the equipment used (subrule 6.a.i) there is
nothing which relates to the actual analysis
of the initial specimen. That
analysis, of course, is the second component in the evidentiary chain required
by rule 78.8.
It follows that rule 78.8, in its terms and more plainly in its context,
envisages that the
47 correctness of the analysis of the initial specimen has
to be proved.
A fortiori
it envisages that such correctness can be
challenged or controverted. And such conclusion is by no means surprising. The
very purpose
of the splitting procedure introduced by the new subrule 6.b was to
isolate the potential reference specimen from the outset so that,
whatever
challenge may supervene concerning the analysis of the initial specimen, the
reference analysis would stand inviolable.
Similarly the presumptions in subrule
6.a draw a distinction between the sampling, bottling and sealing procedures on
the one hand
and the handling of the initial specimen once it arrives in the
laboratory.
That being the elaborate regime created by rule 78, is it conceivable that it
can be put at nought by simply framing a charge under
rule 78.7.a? On the face
of it the answer must be "No".
48
Nor is there any warrant in the wording of rule 78.7.a, read
as it stands, for such an interpretation. That subrule unequivocally
refers to a
single analysis ("an analytical test") and makes no provision for the case where
there are two tests. If rule 78.7.a
is then viewed in its context the conclusion
is ineluctably that it simply does not apply where more than one test has been
conducted.
Rules 78.6.b.iii and iv are designed to afford the owner or trainer
the right to demand a confirmatory analysis. If he does so but
fails to
designate a laboratory The Jockey Club is obliged by subrule 78.6.b.v itself to
make the designation. Therefore, once the
confirmatory analysis has been
demanded it has to be performed. But the owner/trainer runs a risk: if the
reference analysis is adverse
to him he cannot challenge it. He must then face
an enquiry knowing that, however much success he may have had in
49
challenging only the local analysis, he now has an infinitely
more formidable case to meet, as the corroborative value of the reference
analysis will be very substantial indeed. If he calls for a reference analysis
and it, too, reveals the presence of the substance
revealed by the initial
analysis, he is charged under rule 78.8; if he does not he is charged under
78.7.a. In both cases he is at
liberty to challenge The Jockey Club analysis,
each with its own
facta probanda
- and hazards.
The interpretation sought to be put on rule 78 by The Jockey Club entails
that, irrespective of the election by a trainer to demand
a second analysis, he
can be convicted on a single analysis only. What is more, that single analysis
can be the reference analysis,
which, by virtue of rule 78.6.b.viii, is not open
to challenge, or it can be the initial analysis, whether or not it is
borne
50 out by the reference analysis. Counsel for The Jockey Club was
constrained to concede in argument that its interpretation thus
meant that if
the initial analysis found substance A and the reference analysis found
substance B - but not A -The Jockey Club could
prosecute under rule 78.7.a for
the presence of either, or both. Such a startling conclusion serves to
demonstrate the absurdity
of the argument. But it is not only that absurdity
that points away from the interpretation. There is the further absurdity that
the whole elaborate and scrupulously constructed split specimen procedure would
be rendered nugatory if, whatever the safety check
provided by the reference
analysis revealed, a trainer could simply be charged under rule 78.7.a for what
was purportedly found in
the initial specimen. Lastly there is the glaring
absurdity that, as a prosecution under rule 78.7.a could be founded on the
initial
analysis
51 only, the trainer's right to call for a confirmatory
analysis is wholly illusory. If the reference analysis is adverse, he is damned;
if it is exculpatory he can be charged - and convicted -on the basis of the
initial analysis.
It follows that Forbes's contention is
correct. He should
not have been charged with a
contravention of rule 78.7.a but with
a
contravention of rule 78.8. In that event he would
have been entitled to
challenge the correctness of
the analysis of the initial specimen as also
the
integrity of the sampling and transmission
procedures relating to both
specimens. What the
Board did in framing the charge under the
inappropriate rule was fatal to its enquiry and
disciplinary
hearing. By like token it was fatal
to the hearings conducted by the LES and
the HES.
The court
a quo
correctly interpreted rules 78.7.a
and 78.8, and rightly held in favour of Forbes.
52
The contrary interpretation placed on those rules in the case
of
Roy Robert Maqner v The Jockey Club of South Africa and Others
(unreported, delivered in the Witwatersrand Local Division on 5 March 1992 under
case no 30069/91) was wrong. The appeal therefore
falls to be dismissed.
That leaves the question of costs. It is common cause that they are to follow
the event and are to include the costs of two counsel.
However, counsel for
Forbes pressed for an order that the costs of appeal be paid on the scale as
between attorney and client. Although
there is much to be said for the
contention that The Jockey Club's adherence to an erroneous view of its own
rules and its adoption
of a wrong approach to rule 53 have put Forbes to
unnecessary expense, this is still not a case warranting a special award of
costs.
There is no suggestion of bad faith on the part of The Jockey Club, its
attitude was by no means
53
frivolous; Forbes's circumstances and his complaints are not
such as to call for extraordinary consideration.
54
The appeal is dismissed with costs, including the costs
consequent upon the engagement of two counsel.
J.C. KRIEGLER
ACTING JUDGE OF APPEAL
CORBETT CJ ]
VAN HEERDEN JA ]
] CONCUR E.M. GROSSKOPF JA ] NIENABER JA ]

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