Jockey Club of South Africa v Forbes

• Jurisdiction: South Africa
• Judge: Corbett CJ, Van Heerden JA, E M Grosskopf JA, Nienaber JA and Kriegler AJA
• Judgment Date: 01 December 1992
• Citation: 1993 (1) SA 649 (A)
• Hearing Date: 16 November 1992
• Court: Appellate Division

Kriegler, AJA.:

The appellant is the Jockey Club of South Africa, a voluntary association that controls all organised 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 I 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 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 J imposition of the fine

Kriegler AJA

A and (b) for its repayment. The Jockey Club now challenges that order and a 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, B 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 C ('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 Transvaal and Orange Free State Stipendiary Stewards Board ('the Board').

D 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 E 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) F concerned of the charge. The Board then conducts a hearing at 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 G 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 H 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 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 I facts; and (iv) 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', ie the administering of drugs or other J substances to race horses. To this end, rule 78 of the appellant's rules

Kriegler AJA

A makes detailed provision for a number of interrelated measures. It commences with a board prohibition against the administering of any one of a compendious list of substances to a horse which has been entered for a race. The list of prohibited substances includes anti-inflammatory drugs. The rest of rule 78 then establishes an elaborate system of inter-meshing B 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 C 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 D 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 E 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 F sealed reference specimen be sent for analysis, at his 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 G 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 H 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 specimen, the rule as amended refers to 'the analytical tests of the initial and reference specimens. Rule 78.7.a (which was also I 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 J 78.7.a and 78.8 will become apparent in due course.

Kriegler AJA

A 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 B in motion, commencing with an enquiry by the Board. Forbes, upon being notified of the analysis report, 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 C the reference specimen was sent to a laboratory in England designated by the Jockey Club. In due course that laboratry 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, ie that he had been a party to the administration of Naproxen to the horse Fastoll. On 10 August 1989 he D 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 that the alternative against him should be E 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 F 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 G the reference specimen irrebuttably correct...