Marlin v Durban Turf Club and Others

• Jurisdiction: South Africa

Marlin Appellant v Durban Turf Club and Others Respondents
1942 AD 112

1942 AD p112

Citation	1942 AD 112
Court	Appellate Division
Judge	De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
Heard	November 17, 1941; November 18, 1941; November 19, 1941
Judgment	December 5, 1941

Flynote : Sleutelwoorde

Review — Proceedings of an arbitral tribunal — Validity of — Principles of natural justice — Effect of agreement between parties — Inquiry under Jockey Club Rules — Steward acting as judge and witness — Bias alleged — Necessary proof.

Headnote : Kopnota

In considering whether a body, which is in the nature of an arbitral tribunal and not an ordinary court of justice, has observed the fundamental principles

1942 AD p113

of fairness at an inquiry due regard must be had to the nature of the tribunal or adjudicating body and the agreement, if any, which may exist between the persons affected.

Appellant, a jockey licensed by the Jockey Club of South Africa, had been warned off for six months after an inquiry by three race meeting stewards as a result of the manner in which he rods at a race meeting. One of the stewards had himself observed the incident and at the outset of the inquiry stated what he had seen and his opinion of the appellant's conduct. It was contended by the appellant that this steward was disqualified from taking part at the inquiry because he functioned as witness as well an in a judicial capacity and because his statements showed that he had prejudged the conduct of the appellant before the inquiry commenced and that, therefore, the finding at the inquiry should be set aside. The rules of the Jockey Club, by which appellant was bound, necessarily implied that the fact that a steward had observed the behaviour of a rider, whose conduct was under investigation, did not disqualify such steward from adjudicating at the inquiry.

Held, that as the appellant was bound by the rules it was not competent for him to contend that the dictates of natural justice had not been observed because the steward had functioned both as judge and witness at the inquiry.

Held, further, that the mere fact that the steward was biassed by his own observations was not in itself sufficient to disqualify him; but that in order to prove that the steward was disqualified from adjudicating it was necessary to show that the steward, after observing the appellant's manner of riding, was not willing to allow his mind to be persuaded by evidence or argument to adopt a conclusion contrary to that which seemed to follow from the result of his own observations.

Held, further, that inasmuch as the steward had stated on affidavit that hi was open to conviction by explanatory evidence and his bona fides was not challenged, appellant had failed to establish sufficient grounds for setting side the finding.

The dictum of WESSELS, J.A in Crisp v South African Council of Amalgamated Engineering Union (1930 AD 225 at p. 238), not approved.

The decision of the Natal Provincial Division in Marlin v Durban Turf Club and Others, confirmed.

Case Information

Appeal from a decision of the Natal Provincial Division (HATHORN, J.P., SELKE, J., and DE WET, A.J.), reversing a decision of a Judge in Chambers (CARLISLE, J.), to whom the appellant had applied successfully on notice to the Durban Turf Club (first respondent); the Jockey Club of South Africa (second respondent); J. S. Ente, T. Williamson and W. Jackson (third respondents); and the Stewards of the Jockey Club of South Africa (fourth respondents), for an order Betting aside certain proceedings of the Durban, Turf Club and the warning off of the appellant by the Jockey Clubs of South Africa.

The facts appear from the judgment of TINDALL, J.A.

1942 AD p114

C. P. Brink, K.C. (with him Holgate), for the appellant: The Court has jurisdiction to set aside the proceedings of a domestic tribunal where there is a violation of the principles of natural justice, and the voluntary association cases are applicable, as domestic tribunals are also established by mutual agreement of members. See Crisp v SA Council of Amalgamated Engineering Union (1930 AD 225, at p. 237). In England the foundation of the jurisdiction of a Court of equity to interfere is the right of property vested in the member of which he is deprived by expulsion, as appears from Halsbury's Laws of England (Hailsham ed., vol. IV, p. 494, para. 913); Rigby v Connol (14 Ch.D. 482); Baird v Wells (44 Ch.D. 661); Millican v Sullivan and Others (4 T.L.R. 203, at p. 204); but see Lamberton v Thorpe (45 T.L.R. 420) and Donaldson v Institute of Botano Therapy (184 L.T. Tour. 384). In South Africa the Courts will set aside the proceedings of a domestic tribunal where a person has been deprived of a civil right which causes patrimonial loss. A proprietary right, in the sense in which it is used in the English cases, is not essential. In the present case the fact that appellant is debarred from earning his living as a jockey and is deprived of his status as such is sufficient to warrant the interference of the Court. See Matthews and Others v Young (1922 AD 492, at pp. 501, 502); Visser v New Club (1903, T.H. 20); Crisp v SA Council of Amalgamated Engineering Union (supra, at p. 235); Snyman v Vrededorp Electoral Division Committee of the National Party (1929, W.L.D. 138, at 143); De Waal and Others v Van der Horst and Others (1918 TPD 277, at p. 283); Lucas v Wilkinson and Others (1926 NPD 10, at p. 16); Stiller's case (1939 NPD 68, at p. 77); Sachs v Moore and Others (1938, W.L.D, 69, at pp. 72, 74); Bredell v Pienaar and Others (1922 CPD 578); Legg v Thompson and Another (1924 CPD 290, at p. 293); African Congregational Church v Dimba (1933, W.L.D. 29); Long v Bishop of Cape Town (5 S. 162); Kotze v Murray (5 S. 39, at p. 54); Burgers and Others v Murray and Others (1 R. 258) and Burgers and Others v Joubert and Others (1 R. 351); Van Rooyen v D.R. Church, Utrecht (1915 NPD 323); Johnson v Jockey Club of S.A. (1910, T.H. 136); Du Plessis v Synod of D.R. Church (1930 CPD 403); Cohen v Committee of Harrismith Hebrew Congregation (1924 OPD 25, at p. 27), Aarons v Cape Society of Accountants & Auditors (1928 CPD 524, at p. 528); Johannesburg Consolidated Invest-

1942 AD p115

ment Co. v Johannesburg Town Council (1903, T.S. 111, at p. 115); Mahomed and Others v Diggers Com. of Barkly West and Another (1920, C.P.D., at pp. 315 and 316). If a proprietary right in the English sense is necessary, it is satisfied by the interest which appellant has in the benevolent fund of the Jockey Club. See Jockey Club Rules (340, p. 144); Director of Education, Transvaal v McCagie and Others (1918 AD 616); Blunt v Lindsay and Another (1912 TPD 941, at p. 943); Johnson v MacDonald and Others (1941 CPD 235, at p. 239). If the effect of the S.A cases is that the Court will grant relief in the absence of a proprietary right, only in those cases where it is equitable to do so, this is a proper case for the exercise of its discretion for the following reasons:-

(i)

The extreme importance of the issue to appellant to deprive him of his right to ride is virtually to deprive him of his livelihood.

(ii)

His character and reputation are affected.

(iii)

The element of personal association is almost entirely absent.

(iv)

If the proceedings are set aside and appellant is allowed to continue his occupation he will have suffered no damage because he has been allowed to exercise his calling meanwhile.

Appellant's claim is not for a mandamus nor for an interdict but for a declaration of rights. See Guildford v Minister of Railways and Harbours and Union Government (1920 CPD 606 at p. 613); Bredell v Pienaar and Others (1922, C.P.D at p. 586); Bresgi v Lazersohn (1939 AD 445 at p. 452); Dominion Insurance Co of SA Ltd. v Payten (1939 CPD 405).

A Court of Appeal will only interfere if the discretion to make a declaration of rights is not judicially exercised. See Wait v Estate Wait (1930 CPD 1 at pp. 5, 6).

The Race Meeting Stewards in holding the inquiry acted in a quasi-judicial capacity. See Jockey Club Rules, 60-62, 71-2, 290-1, 292; Abrahamse v Phigeland and Others (1932 CPD 196 at p. 199); Law v Chartered Institute of Patent Agents (88 L.J Ch. 319 at p. 324; 1919, 2 Ch.D. 276 at p. 289); Leeson v General Medical Council (43 Ch.D. 366 at p. 379); Matthews and Others v Young (supra at p. 509).

The stewards were bound to observe the rules and the principles of natural justice and if the rules authorise a departure from such principles, the Court cannot give effect to them. See Crisp v S.A.

1942 AD p116

Council of Amalgamated Engineering Union (1930, A.D at pp. 236, 237); Dawkins v Antrobus (17 Ch.D. 615); Herzberg v Johannesburg Stock Exchange (1903, T.H. 336 at pp. 344, 345); Barlin v Licensing Court for the Cape (1924 AD 472 at pp. 474, 475, 480); Dabner v SA Railways (1920 AD 583 at p. 598).

McClean's case (1929, 1 Ch. 602) is distinguishable and should not be followed in so far as it is in conflict with Crisp's case.

The dictates of natural justice require not only that a fair opportunity of being heard should be given but also that the Judges should keep a fair and open mind. See Barlin's case (supra at pp. 474, 475, 479); Frome United Breweries v Bath Justices (1926, A.C. 586 at pp. 590, 600); Local Government Board v Arlidge (1915, A.C. 120 at pp. 132, 133, 138, 140, 141); Board of Education v Rice and Others (1911, A.C. 179 at pp. 182, 187); Halsbury's Laws of England (vol. 26, para. 606, p. 285); Director of Education v Wilkinson (1930 TPD 471 at pp. 481, 482); Crisp's case (supra at p. 242).

The same person cannot be Judge and witness at the same time. See Merula (4.40.22); Voet (5.1.44); Wilkinson v Public Prosecutor (3 M. 459); Rex v Ngogana and Others (1923, E.D.L. 436); Rex v Howard (1902, 2 K.B. 363 at pp. 376, 377).

A Judge...