National Horseracing Authority of Southern Africa v Naidoo and Another

• Jurisdiction: South Africa
• Judge: Levinsohn DJP, Kruger J and Wallis J
• Judgment Date: 23 February 2009
• Citation: 2010 (3) SA 182 (N)
• Docket Number: AR 254/08
• Hearing Date: 03 February 2009
• Counsel: AJ Freund SC for the appellant. N Beharie for the first respondent.
• Court: Natal Provincial Division

Wallis J: D

[1] The first respondent, Mr Cyril Naidoo, has been a racehorse trainer since 1993. He has achieved substantial success in that capacity and at the time of the events giving rise to the present proceedings had some 120 horses in training in his yard. E

[2] On 27 October 2005, after a race at the Vaal Racecourse, a horse trained by Mr Naidoo tested positive for a prohibited substance, a drug called Ibuprofen. In consequence the appellant (the NHA), caused his stable premises at the Vaal to be searched by Mr Van Rensburg, a special investigator employed by it. This search discovered various items, the F ones of importance for present purposes being substantial quantities of Schedules 3, 4 and 5 drugs listed in those Schedules of the Medicines and Related Substances Act 101 of 1965 as well as a number of receipts and accounts for the supply of such drugs to Mr Naidoo.

[3] In consequence of the discovery of these items the NHA appointed a G board of enquiry, under the chairmanship of the second respondent, to investigate the circumstances and reasons for Mr Naidoo being in possession of large quantities of anti-inflammatory tablets and various other medical substances and also the circumstances surrounding the purchase of numerous pharmaceutical items identified in the pharmaceutical invoices found at his stables. H

[4] The proceedings at the board of enquiry were delayed as a result of certain applications brought in the High Court by Mr Naidoo against the NHA. Those applications were not successful and in the result the initial consideration of the merits of the matter took place at a hearing convened on 26 January 2007. I

[5] In the course of the proceedings before the enquiry it was accepted that the quantities of drugs reflected on the bundle of invoices handed to the board were inordinately large and after some discussion between the legal representatives of the NHA and Mr Naidoo an admission was recorded that the quantities evidenced by the documents in the bundle J

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A were unusually high and more than one would expect a trainer to have in his yard at any given time for the purpose of treating his own horses.

[6] Not surprisingly that admission called for an explanation and one was given by Mr Naidoo by way of evidence. He explained that he had certain horses (mares, yearlings and weanlings) standing on a stud farm B in the Queenstown area and that the drugs in question were to be used in relation to these horses. According to him the medication that he purchased as reflected on the invoices was merely delivered to his stables for the sake of convenience, but was not for the purpose of stable use. Instead he transported it to the farm where he had his mares, yearlings C and weanlings. According to his evidence he would visit the stud farm once or twice a week and administer the medicine to the horses there. That was his sole intention in acquiring these quantities of drugs.

[7] As this explanation had not been placed on record before Mr Naidoo gave evidence it led to an adjournment of the proceedings before the board in order to enable the NHA to undertake further investigation. D This it did and the enquiry resumed on 8 June 2007.

[8] At the resumed enquiry there was evidence from Dr McPherson and Prof Guthrie in regard to the use of the drugs in question for the purposes testified to by Mr Naidoo. Their evidence not only confirmed E that Mr Naidoo had acquired an extraordinarily large quantity of drugs but that it was highly improbable on medical grounds that Mr Naidoo's explanation was true. Even more tellingly there was evidence from the owner of the stud farm, Mr Sahd, who in no uncertain terms characterised Mr Naidoo's evidence as false. He also testified, without challenge, that Mr Naidoo had tried to induce him to change his statement to one F more favourable to his interests because Mr Naidoo complained 'that I was busy sinking him by making this statement and I should change this statement'. He said that his response to this suggestion was:

'And I said to Cyril I would not change my statement, come hell or high water, it stood, because that was the truth. I wasn't influenced by G anybody and I am not in the habit of wasting people's time . . . .'

[9] Mr Naidoo gave no more evidence and no witnesses were led on his behalf. This brought the enquiry to an end and at this stage the board put two formal charges to him. Those charges were:

'Firstly a contravention of Rule 10.5.16.1 read with Rule 71.1 in that H you had in your possession, or on the premises where you trained, the following medicines, drugs or related substances, namely, the items listed in NHA 10, and, indeed, in the amounts or quantities therein listed, those medicines, or drugs or related substances, which are identified as Schedule 3, 4 or 5, being substances listed in the said Schedules of the Medicines and Related Substances Control Act 101 of 1965 I over the period 5 October 2001 to 25 October 2005.

Secondly, a charge under Rule 72.1.17 read with Rule 71.3 in that you attempted during the course of these proceedings to mislead this board into believing that you had the scheduled drugs referred to in the earlier charge solely for the purposes of treating your brood mares, yearlings and weanings, whereas in truth and in fact you had these substances in J your possession for a purpose or purposes not disclosed to this board.'

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[10] Mr Naidoo pleaded guilty to the first of these charges and not guilty A to the second. When his attorney was asked whether there was any evidence he would like to lead in relation to the second charge he indicated that his client had 'nothing to add' on the basis that there had already been 'sufficient evidence'. Not surprisingly in those circumstances the board then convicted Mr Naidoo on both charges and, taking B the two together for the purposes of sanction, imposed a warning off. Under the appellant's rules that would debar him from all premises subject to the NHA's regulatory control and effectively bring his career as a trainer to an end.

[11] Mr Naidoo sought to challenge both his conviction on these two C charges and the sanction of warning off in review proceedings before the Durban and Coast Local Division of the High Court. Insofar as the convictions on the two charges are concerned those proceedings were unsuccessful and there is no appeal against that decision. However the sanction of warning off was set aside by the court a quo and it is that decision that is the subject of this appeal. D

[12] At the outset it is necessary to explore the basis upon which Mr Naidoo was entitled to invoke the jurisdiction of the High Court to challenge the sanction imposed by the board of enquiry under the rules of the NHA. In order to undertake that enquiry I first consider the E grounds advanced by Mr Naidoo in his founding affidavit because it is there that the case sought to be made must be set out. As the Constitutional Court has recently pointed out it is in general not for the reviewing court to seek for grounds of review not relied upon by the applicant. [1] That is however subject to one qualification namely that where a point of law is apparent on the papers, but the common F approach of the parties proceeds on a wrong perception of what the law is, the court is not only entitled but obliged mero motu to raise the point of law and require the parties to deal therewith. Otherwise the result would be a decision premised on an incorrect application of the law and that would infringe the principle of legality. [2] The need for the court to ensure that the parties are afforded a fair opportunity to deal with the G point was stressed by the Constitutional Court. [3] In particular the court must be satisfied that all the relevant facts necessary to decide the legal point are before it.

[13] In summarising his contentions in the founding affidavit Mr Naidoo H claimed that the enquiry violated the principles of natural justice that were applicable to it. As Mr Freund SC, for the appellant, pointed out, this language is consistent with the pre-constitutional decisions under the common law in the well-known quartet of cases involving the

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A appellant's predecessor. [4] Those cases held that the relationship between the appellant's predecessor and jockeys and trainers is a contractual one and that when disciplinary enquiries are held all that the jockey or trainer is entitled to is a proper hearing in accordance with the principles of natural justice. Even that entitlement may be qualified by the specific B provisions of any particular rules applicable to the enquiry. [5] Mr Freund contended that the respondent had limited himself to this case and accordingly that the court should confine itself to deciding the case within the principles previously laid down in those authorities.

[14] It seems to me that there are two difficulties in the path of this C approach. The first is that in the very same paragraph of the founding affidavit the respondent invoked the provisions of s 39(2) of the Constitution and the court's obligation to develop the common law by promoting the spirit, purport and objects of the Bill of Rights. Secondly, when dealing specifically with his challenge to the sanction of warning off the respondent contended that this sanction was 'neither justified nor D rational in the circumstances'. On several occasions thereafter he complained that the sanction is 'unfair and irrational'. That is language appropriate to a review on the grounds of rationality in terms of the provisions of s 6(2)(h) of PAJA [6] as construed by the Constitutional Court. [7]

E [15] On the papers therefore there is a substantial degree of uncertainty as to the precise grounds upon which the respondent sought the review of the decision...