Jockey Club of South Africa and Others v Feldman

• Jurisdiction: South Africa
• Judge: De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
• Judgment Date: 29 July 1942
• Court: Appellate Division

Tindall, J.A.:

Before dealing with the issues raised in this appeal, which is brought against a decision of the Witwatersrand Local Division, it is necessary to state the relevant facts. The respondent Feldman held a licence as a jockey from the Jockey Club of South Africa. On 26th December, 1941, be rode a horse named "Shy" in a 6 furlong race at a race-meeting held by the Johannesburg Turf Club under the rules of the Jockey Club of South Africa. The horse finished fourth. The race-meeting stewards watched the race in the stewards' box in the grand stand. One of the stipendiary stewards, Bowen, was sitting in the grand stand. The other stipendiary steward, Ward, was stationed in a box situated at about the 3 furlong post, that is, about half way between the starting post and the winning post in the race. Immediately after the race Bowen approached Parker, one of the race-meeting stewards, and complained of the running of the horse Shy. Parker discussed the matter with his fellow stewards and they decided to hold an inquiry. Shortly after this decision Ward made a similar complaint to Parker. The inquiry was immediately started on the premises of the Turf Club. At the inquiry there were present three race-meeting stewards, namely W. E. Parker who acted as chairman, J. V. Brink and C.O. Wallace, the stipendiary stewards Ward and Bowen, the secretary of the Turf Club, the owner of the horse - Brown - and Feldman himself. At the hearing on 26th December Brown, the two veterinary surgeons of the Turf Club, Butler the judge of the race, and Chapman the handicapper, were called and questioned. Thereafter Ward and Bowen made statements. The evidence heard

Tindall, J.A.

up to this stage had made it manifest that the complaint against Feldman was that he did not ride the horse to win. Feldman then gave evidence, in the course of which he gave his account of the running of the horse. The inquiry was then adjourned. When it was resumed at 3 p in on 2nd January the racing steward Brink could not be present and another racing steward, E. Nathan, took his place, with the consent of the owner and Feldman. After the evidence previously given had been read out Feldman called other witnesses, seven of whom had seen the race and four of whom were jockeys who rode other horses in the same race.

After the last witness had retired and Feldman had been given an opportunity of saying anything further he wished to say, Brown and Feldman retired, the three racing stewards and the two stipendiary stewards remaining together in the room. Shortly after the termination of the evidence at about 5 p m. Brown and Feldman were called in and informed of the finding, which was worded in the following terms: "The stewards after hearing the evidence and from their own observations decide that H. Feldman, the rider, did not allow 'Shy' to run on its merits and they recommend that he be warned off for a period of six months. Mr. Edward Nathan, as a result of his observations, dissents from this. The owner is entirely exonerated, and no blame attaches to the owner, Mr. Brown." The chairman Parker then informed Feldman that the stewards had decided to recommend to the Jockey Club that he be warned off for six months.

According to Rule 300 of the Jockey Club's rules (to which rules Feldman's licence was subject) he had a right of appeal from the decision of the race-meeting stewards to the local executive stewards of the Jockey Club. In due course Feldman noted such appeal. At the hearing of this appeal on 15th January Feldman called the starter, Powell, to give evidence, and he submitted his appeal purely on the footing that a question of fact was involved. Neither in the written reasons for his appeal nor at the hearing was any mention made of any irregularity committed at the inquiry held by the race-meeting stewards. His appeal was dismissed, one of the local executive stewards, Forbes, dissenting from his colleagues, and the recommendation of the race-meeting stewards that Feldman be warned off for six months was confirmed.

Under the same rule Feldman had a further right of appeal to the Head Executive Stewards of the Jockey, Club, and he exercised.

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this right. Rule 303 requires an appellant, who has given notice of appeal, to lodge the appeal itself with the reasons therefor. In his reasons for appeal, dated 20th January, Feldman, after stating that he had obtained professional advice and that the grounds of appeal now formulated were quite distinct from those submitted to the local executive stewards, states the first ground as one of irregular conduct of the proceedings by the stewards of the Turf Club in breach of the rules of the Jockey Club. This ground of appeal, as detailed, alleges that the stipendiary stewards sat on the committee of inquiry and practically conducted and controlled the inquiry, that the record showed that they did not retire at any time, that they participated in the decision and voted in the actual finding. The notice then continues thug: "On the facts of the case I say that the decision given is against the weight of evidence and definitely against the probabilities." Then follows a discussion of the evidence occupying four pages, and the reasons pi appeal continue in these terms:-

"The decision of the Enquiry Committee was not unanimous and when the Chairman, in delivering the finding, intimated that the stewards took a very serious view of the matter, they were obviously influenced by the voting and the expression of opinion of the two, stipendiary stewards who had no right to be on the Committee or to adjudicate on the finding. They were my prosecutors. The decision taken is also stated to be partly based on the observations of the stewards. of these stewards it is clear from the Minutes that only two - the stipendiaries - gave evidence and expressed their observations. The observations of any such other stewards is not on record so we do not know what they were.

"Whilst I express confidence in the success of this my appeal, I cannot help remarking that the recommendation of the Enquiry Committee is decidedly severe and quite out of all proportion to the allegations against me even if they had been proved.

"I maintain that the horse ran up to its form. I also stress the point that I used my whip on the horse over the last 2½ furlongs in an endeavour to chase him along to win. This is borne out by the jockeys riding in the race who gave evidence. Apparently this was not seen by Mr. Bowen for, as he stated towards the top part of page 5 of the Minutes, if that had been so he would not have told the Chairman that I was not trying."

Tindall, J.A.

At the hearing of the appeal on 21st January Feldman appeared and made a verbal statement in support of his written grounds of appeal. According to the Minutes, which are very brief, the chairman then explained to him, in reference to one of the points mentioned in the appeal (I infer that he meant the first point) that the original finding was given by the race-meeting stewards and that no persons other than race-meeting stewards gave that decision. Feldman then retired, and the Minutes go on to record that the appeal and the relative papers were then considered and it was decided that the appeal be dismissed and that the warning-off sentence should operate from 21st January to 20th July. Feldman was then informed verbally of the decision.

Thereafter Feldman applied in the Court below for an order (a) declaring the proceedings conducted by the stewards of the Johannesburg Turf Club and by the stewards of the Jockey Club to have been irregular, ultra vires, in breach of the rules of the Jockey Club and in breach of the principles of natural justice; (b) a similar declaration in respect of the sentence of suspension or warning-off by the Jockey Club through its Head Executive Stewards; (c) an interdict retraining all the respondents (the present appellants) from acting on the said warning-off. The respondents cited were (1) the Jockey Club of South Africa and the Head Executive Stewards as such, (2) the Johannesburg Turf Club, and (3) Parker, Wallace and Nathan in their capacity as stewards of the Johannesburg Turf Club and in their individual capacities.

In Marlin v Durban Turf Club and the Jockey Club of South Africa (1942 AD 112) the position of a jockey licensed under the Jockey Club rules was considered, and it was pointed out that vis-à-vis the Turf Club, at whose races he rides, and the Jockey Club, the relations between the parties are contractual and the rights such relations give rise to are contractual and depend on the rules of the Jockey Club (which the jockey, the Turf Club and the Jockey Club have agreed to be bound by) and on the principles of the common law. Most of the relevant rules were quoted in Marlin's case and it is not necessary to quote those again in these reasons.

One of the irregularities relied on in the petition to the Court, namely that the stipendiary stewards took part in the original decision on 2nd January, need not be discussed. The race-meeting

Tindall, J.A.

stewards Parker, Wallace and Nathan, gave evidence before MARITZ, J., who heard the application, and after that evidence counsel for Feldman wisely withdrew that alleged ground of irregularity. But the petition also relied on the presence of the stipendiary stewards in the same room with the race-meeting stewards when the, last-mentioned arrived at their decision as an irregularity, and alleged that their mere presence was calculated to prejudice and must have prejudiced a fair consideration of the evidence of the race-meeting stewards. MARITZ, J., does not deal with this point in his reasons, and it was not necessary for him to do so because he upheld Feldman's application on the next ground of alleged irregularity to be discussed. It will be convenient to deal with this ground before discussing the point...