Marlin v Durban Turf Club and Others

• Jurisdiction: South Africa
• Judge: De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
• Judgment Date: 05 December 1941
• Citation: 1942 AD 112
• Court: Appellate Division

Tindall, J.A.:

The appellant, who held a licence as a jockey from the Jockey Club of South Africa, was "warned off" for a

Tindall, J.A.

period of six months as a result of the manner in which he rode a horse named "Dark Renown" at a race meeting of the Durban Turf Club held in Durban on 7th December, 1940. Immediately after the race three race meeting stewards of the said Turf Club, Messrs. Ente (chairman), Williamson and Jackson commenced the inquiry. A stipendiary steward, Wilson, was present as a witness and James (the owner of the horse), Obdam (the trainer) and the appellant were called in. The proceedings started with a statement by Wilson who reported, in effect, that until the last furlong the appellant held in the horse and that it was clear that, at no part of the journey was the appellant making any effort to win the race. Thereafter evidence was heard from various witnesses. The inquiry was concluded on 9th December when the stewards announced their finding, which was that they were satisfied on the evidence adduced that there was overwhelming proof that Jockey Marlin did not ride "Dark Renown" to win the race, and they recommended that he be warned off for six months. The appellant then appealed, as provided by the Rules of the Jockey Club, successively to the Local Executive of the Jockey Club in Natal and to the Head Executive in Johannesburg. The appeals failed and he was warned off for six months.

The appellant thereafter applied to a Judge in Chambers for an order setting aside the inquiry and the warning-off on the ground that the steward Jackson had disqualified himself from adjudicating by prejudging the case before the evidence was heard. CARLISLE, J., while accepting that Jackson acted in good faith, held that a reasonable, man must entertain the suspicion that he was biased, and on this ground granted the order. Thereafter on appeal that order was set aside by the full Court, which held that the application must be dismissed with costs. The appellant now seeks in this appeal to have the order of the single Judge restored.

As the appellant's case is based on an irregularity, it is not necessary to mention the effect of the evidence recorded except so far as it throws light on the state of mind of the steward Jackson. After Wilson made his opening statement, the trainer put a question to him. Thereupon, in reply to a question by the chairman to the trainer, the latter stated that he had told the appellant to ride the horse out and the owner then stated that he had told him to win if he could. The record then continues:

Tindall, J.A.

"By Mr. Jackson: Mr. Chairman, I was at the start and I wish to say that this horse had every chance of getting away, but the jockey never tried at all and he almost pulled the horse's head off. It was one of the most deliberate and undoubtedly one of the worst cases I have seen within the past 20 years. No questions to Mr. Jackson." After this the following witnesses were heard, the assistant judge and veterinary surgeon, the trainer, the owner, the appellant, a witness named Stayt, five jockeys, the starter, the witness Lynch, the judge and the handicapper. After these witnesses had been interrogated the note on the record is: "No one has any more questions to put to Mr. Chinnery (the handicapper) or any more evidence to call." The inquiry then adjourned to 9th December. After the adjournment the trainer sent a letter, dated 7th December, to the inquiry stewards suggesting that the appellant's handling of the horse may have been due to a difficulty in getting the animal into a balanced gallop and submitting that Wilson, not knowing the condition of the horse before the race, may have put a wrong construction on the jockey's conduct. When the inquiry reopened on 9th December the chairman referred to the letter and asked the trainer whether he wished it to be embodied in the evidence, and the trainer said he did. On a question by the chairman whether he wished to add anything to the letter, the trainer read the letter and then said he wanted to make sure about the point that the horse was unbalanced, and he asked whether that was in the evidence. Thereupon, according to the record, Jackson made the following remark: "The boy never gave the horse a chance to balance himself; the horse was pulled in such a manner as to be swerving from side to side." The trainer then emphasised that he knew of no motive why the appellant should "pull" the horse, whereupon Jackson said: "Do you realise that the sum of close on £1,800 was lost by the public over that race?" After some further remarks by Wilson and Williamson the appellant remarked that Jackson had said that the horse was swerving because the appellant was "sitting on" it (meaning, I infer, holding it in). He remarked that he was "sitting" on the horse because the horse was unbalanced and was swerving, and he asked the question whether Jackson could not attribute the swerving to the fact that the horse was unbalanced. Thereupon Jackson made the following reply:- "You never gave the horse a chance to gain his balance." The trainer then asked whether Jackson

Tindall, J.A.

would not attribute the unbalanced behaviour of the horse to the fact that a martingale was not used, and Jackson replied "No." After some further remarks by the appellant he and the trainer retired while the stewards considered their finding, and thereafter the chairman announced their finding abovementioned.

Before dealing with the questions of law raised I may mention the connection which exists between the various respondents on the one hand, and between them and the appellant on the other. The second respondent, the Jockey Club of South Africa, is a club formed with the object of promoting, regulating and securing honourable practice in racing, and it seeks to achieve its purpose by ensuring, as far as possible, that racing clubs will observe its rules. Such rules provide that a racing club carrying on racing in South Africa may, if it submits itself to the Jockey Club's jurisdiction and rules, be licensed by the Jockey Club. If such licence is granted the racing club is bound to hold all its race meetings under the rules of the Jockey Club. The Durban Turf Club (the first respondent) is licensed under and bound by those rules, as indeed are all the leading racing clubs in South Africa. To be entitled to ride at race meetings held under the rules of the Jockey Club the appellant had to obtain a licence from that Club (Rule 101 A); in terms of his licence he is subject to and bound by those rules. Although the Durban Turf Club was obliged to take out an ordinary race-course licence under sec. 5 of Natal Ordinance 17 of 1922, the rights of that Club and of the Jockey Club vis-à-vis the appellant are, so far as the present dispute is concerned, not dependent on any statutory provision; the relations between the parties are contractual, and the rights such relations give rise to depend on the rules to which the appellant has subjected himself and on the principles of the common law. It is necessary therefore to mention the relevant provisions in those rules. Rule 55 (a) requires that at every ordinary race-meeting duly qualified persons shall be appointed to act in certain capacities, among which is set out in Rule 55 (a) that three or more such persons shall act as race-meeting stewards. Rule 71 states the powers and duties of race-meeting stewards, and I set out two sections of the Rule which are relevant, namely secs. 71 (b) and 71 (f). The former is expressed as follows:

". . the race-meeting stewards shall have power to regulate, control, take cognisance of, inquire into and adjudicate upon the

Tindall, J.A.

conduct of all officials, and of all owners, trainers, jockeys, riders and horse attendants taking part in their race-meetings, and of all persons frequenting the stands or other places used for the purpose of the race-meetings;"

and the latter:

"to punish at their discretion any person subject to their control with a reprimand, caution, warning, or a fine not exceeding fifty pounds and for with suspension from acting or riding at the same meeting, and to report, with their recommendations as to penalty, any person or persons to the Local Executive stewards should they consider any further fine or punishment necessary."

The rules contain a provision prohibiting race-meeting stewards from exercising these functions in certain circumstances, and here I set out Rules 61 and 62, which are respectively in the following terms:

61. "No race-meeting steward shall sit on or take part in any discussion or adjudicate upon any inquiry, objection or other matter brought before the race-meeting stewards

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