---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)   REPORTABLE: NO

(2)   OF INTEREST TO OTHER JUDGES: NO

1 December 2021 

 

In the matter between:

CASE NO: 58603/2021

 

HERMANN COMBRINK                                                                                  Applicant

and

 

SOUTH AFRICAN PRACTICAL SHOOTING ASSOCIATION                First Respondent

 

JAN VAN DEN BERG N.O.                                                                              Second Respondent

 

JACOBUS PETRUS BREYTENBACH N.O.                                                  Third Respondent

 

Date of hearing:       30 November 2021

Date of judgment:    1 December 2021

Summary: Urgent application – disciplinary proceedings of national sporting body – compliance with prescribed time periods

 

JUDGMENT

 

S BUDLENDER AJ:

[1]        This matter concerns the question of whether the South African Practical Shooting Association (SAPSA) complied with its Constitution and Disciplinary Procedure in relation to the disciplinary processes concerning the applicant (Mr Combrink).

[2]        The matter came before me sitting in the urgent court on 30 November 2021.  Its outcome will determine whether Mr Combrink can participate in a national shooting competition to be held on 2 December 2021. That will in turn affect whether he has an opportunity to be selected for the 2022 Proteas Shootingteam.

[3]        In all the circumstances, I was satisfied that the matter was urgent and heard it on 30 November 2021.  Because of the date of the national shooting competition, it is necessary that I deliver this judgment by 1 December 2021. 

BACKGROUND FACTS

[4]        In terms of its Constitution, SAPSA is a voluntary association whose objectives include promoting, organising and controlling practical shooting in South Africa, including organising national shooting competitions from time to time.

[5]        Mr Combrink was a member of one of the affiliates of SAPSA until the first half of 2021, when he resigned.

[6]        Despite his resignation, Mr Combrink was subjected to certain disciplinary proceedings under the auspices of SAPSA for events that took place before he resigned.  The disciplinary proceedings concern the writing of an anonymous letter which is said to contain defamatory statements about SAPSA and its office-bearers. 

[7]        It does not appear to be disputed that SAPSA was entitled to proceed with such disciplinary proceedings despite Mr Combrink’s resignation.  Nor am I asked to consider the substance of the charges against Mr Combrink.   

[8]        I set out below the chronology of events in relation to Mr Combrink’s disciplinary proceedings.  For present purposes, it suffices to say that they culminated in a hearing before a Disciplinary Committee on 11 November 2021.

[8.1]          During that hearing, the Committee had to rule on whether the disciplinary process was still valid, in view of various prescribed time periods in the SAPSA Constitution and Disciplinary Procedure.

[8.2]          The Committee concluded that the disciplinary process was still valid and could proceed.

[9]        Mr Combrink now seeks to urgently review that decision in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), alternatively the common law.  He contends that:

[9.1]          The peremptory time periods set out in the SAPSA Constitution and Disciplinary Code were breached in his case and that the disciplinary processes have now lapsed;

[9.2]          The decision of the Disciplinary Committee to the contrary falls to be reviewed and set aside; and

[9.3]          Once this occurs, there will no longer be pending disciplinary proceedings against him and he will be entitled to take part in the national shooting competition to be held on 2 December 2021.

[10]    It seems to me that in light of the judgment of this court in Ndoro,[1] there is much to be said for the proposition that PAJA is applicable to the decision at issue.  But there is no need to decide this question. Even if the decision were not subject to review under PAJA, it would seem to be subject to review under the common law.  The SCA has very recently re-affirmed the role of such common law review in Bae Estates.[2]

[11]    The real question is therefore whether the Disciplinary Committee committed a material error of law when it concluded that the disciplinary processes against Mr Combrink were in compliance with the SAPSA Constitution and Disciplinary Procedure. 

[12]    I now turn to consider that question.[3]

THE RELEVANT PROVISIONS

[13]    Clause 14 of the SAPSA Constitution deals with “discipline”.  Clause 14.1 provides that the Executive Council may initiate a disciplinary process.  Clause 14.3 then provides:

“The disciplinary process will commence expeditiously, but not later than three (3) months after the alleged offence, failing which the alleged offence will lapse and be of no further effect.”

[14]    The SAPSA Constitution must be read together with the SAPSA Disciplinary Procedure. 

[14.1]      The SAPSA Disciplinary Procedure provides that its objectives are to determine the rules and regulations pertaining to the procedure where disciplinary action is taken against an individual member or member organisation.

[14.2]      Clause 5 deals with the “disciplinary process”.  It provides:

“5.1 The Disciplinary Officer shall notify the member, in writing, within fourteen (14) days of the decision to initiate a disciplinary process, failing which the alleged offence will lapse and be of no further effect.

5.2   Such notification must include:

5.2.1    A summary of the incident that resulted in the disciplinary process.

5.2.2    The names of the appointed Presiding and Disciplinary Officers.

5.2.3    The member’s right to make representation, in writing, to the Disciplinary Officer within fourteen (14) days of receipt of the notification, as to why the disciplinary process should not proceed.

5.3   Should the member not make representation within the prescribed time or should the Disciplinary Officer deem that the representation made does not mitigate the circumstances, a Disciplinary Committee will be appointed in terms of the Federation’s Constitution.

5.4   The Disciplinary Officer will notify the member of the:

5.4.1    Intent to proceed with the disciplinary hearing.

5.4.2    Names of the member of the Disciplinary Committee.

5.4.3    Details of the charges.

5.4.4    Date and Venue of the disciplinary hearing.

5.5   With the exception of the mutual consent of the Disciplinary Officer and the Defendant, the disciplinary process must be concluded expeditiously, but by no later than three (3) months after initiation of the disciplinary process, failing which the alleged offence will  lapse and be of no further effect.”

[15]    It was argued by counsel for SAPSA and accepted by counsel for Mr Combrink that when these provisions are read together they produce two consecutive deadlines that must be complied with, each of three months’ duration.

[15.1]      First, in terms of clause 14.3 of the SAPSA Constitution, there is a three month period after the alleged offence occurs within which the disciplinary process must be initiated.  If this does not occur, the alleged offence will lapse and be of no further effect.

[15.2]      The initiation must take place in terms of clause 5.2 of the Disciplinary Procedure and involves a notification containing the necessary details prescribed by clause 5.2. 

[15.3]      Once the initiation has taken place, the second three month period commences. It requires that the disciplinary process must then be concluded no more than three months after it was initiated. This time period is set out in clause 5.5 of the Disciplinary Procedure.  It is subject to extension by the “mutual consent” of the Disciplinary Officer and the person subject to the disciplinary process.

[16]    Added to this is one further time period which must be complied with.  This emerges from clause 5.1 of the Disciplinary Procedure. It provides that once a decision has been taken to initiate a disciplinary process, the Disciplinary Officer must notify the member in writing within 14 days.

[17]    It is clear from these provisions that the SAPSA Constitution and Disciplinary Procedure are mindful of the adverse consequences which could result from lengthy delays in the disciplinary procedures and in disciplinary matters not being expeditiously finalised.  It is for that reason that they make clear that if the time periods are not complied with, then the offence or proceedings concerned lapse.

CHRONOLOGY OF KEY EVENTS

[18]    In order to assess whether these time periods were complied with it is necessary to have regard to the chronology of events. 

[19]    The chronology of events is not always easy to follow by virtue of the manner in which the papers have been prepared.  Nevertheless having considered the papers and the contemporaneous correspondence attached to the papers it seems to me that the key events are as follows.[4]

[20]    It is common cause between the parties that the alleged offending conduct took place on 11 May 2021.

[21]    On 27 May 2021, Mr Combrink was sent a letter by Mr Osman, the SAPSA chairman.  That letter referred to Mr Combrink’s resignation and then made reference to various investigative and disciplinary processes.  In particular, it stated as follows:

“Whether or not you are a member, it is in your best interests to cooperate with the investigation process, as the report will be handed to a Disciplinary Committee via the disciplinary initiation process as mandated by the SAPSA Constitution, which will sit and make recommendations based on the evidence provided. SAPSA hereby confirms that the investigation into the anonymous letter will continue to its conclusion.

Similarly, it has come to SAPSA’s attention that your name is mentioned in a signed statement pertaining to racist and derogatory remarks towards SAPSA members.  It must be noted that disciplinary processes in terms of the Constitution will be and has been initiated and will be continuing to its conclusion. Once again, whether or not you are a member, it is in your best interests to cooperate with this process.

The Committee (if approved) for both processes will make findings with or without your presence and it is advisable for this not to be made in your absenture.”

[22]    On 10 June 2021, the vice-chairman of SAPSA, Mr Zama, wrote to the second respondent (Mr Breytenbach). He advised Mr Breytenbach that by majority vote MANCO had appointed him to sit as the Disciplinary Officer to perform various tasks.  These included studying the reports received by SAPSA on the investigation of the anonymous letter; dealing with any relevant issues pertaining to the anonymous letter investigation; and to submit a report with recommendations.

[23]    On 1 July 2021, Mr Breytenbach wrote to Mr Zama reporting on his investigation.  He concluded that sufficient grounds existed to make a recommendation that a formal disciplinary action be initiated against the author of the anonymous letter and that he be charged formally to attend a disciplinary hearing.

[24]    On 19 July 2021, Mr Breytenbach wrote to Mr Combrink.  He indicated that after an initial investigation performed by him, a decision had been taken by SAPSA on 7 July 2021 to initiate a disciplinary process against Mr Combrink.  He called for representations regarding the disciplinary action, presumably in terms of clause 5.1 of the disciplinary procedure.

[25]    On 26 August 2021, Mr Combrink was issued with a notification to participate in the conduct of a disciplinary hearing/inquiry which was due to take place on 7 September 2021.

[26]    On 30 August 2021, Mr Combrink’s attorneys wrote a lengthy letter to Mr Breytenbach. 

[26.1]      In that letter after seeking various forms of information, Mr Combrink’s attorneys stated that:

“You are cordially requested to-

-       Arrange an alternative date with our Mr Pritchard, suitable for all parties, and specifically also to enable our counsel’s attendance.

-       Timeously, at least 3 weeks before the proposed disciplinary proceedings, discover/supply us with the documentation and information, as per our letters dated 23 July 2021 and 29 July 2021.”

[26.2]      The letter also threatened that if there was not compliance with these requests, Mr Combrink intended to approach the High Court on an urgent basis to compel SAPSA to comply.

[27]    On 31 August 2021, Mr Combrink’s attorneys wrote to Mr Breytenbach.  The letter stated as follows:

“We refer to the telephonic discussion with our Mr T Pritchard. We confirm that the existing disciplinary hearing date of 7 September 2021, by means of Teams, will be adjourned to a date to be arranged with all parties concerned. We would like to express our appreciation in this regard. We also confirm that you informed our Mr Pritchard that you need time to address our request for particulars and documentation and for you to comply insofar as you are able or willing to. We accordingly confirm that we shall not bring any urgent application on the basis of the existing date for hearing, or failure to discover up to now.”

[28]    On 6 September 2021, Mr Breytenbach replied to Mr Pritchard.  He stated:

“As agreed on the telephone let’s postpone the hearing to a date agreed to but please let’s not prolong this matter [beyond] what is [necessary]. I suggest we can agree on a meeting as soon as possible to have a pre-hearing conference to assist both parties with preparation, witnesses and documentation.

I have a 3 month deadline from when I charged Hermann till the date finish. This date could be extended by against. Can I also have the undertaking that we extend the period, with say two months to ensure that we do not run out of time.”

[29]    On 14 September 2021, another letter was written by Mr Combrink’s attorneys to Mr Breytenbach. 

[29.1]      It referred to the discussions between Mr Breytenbach on behalf of SAPSA and Mr Pritchard and Adv Pansegrouw on behalf of Mr Combrink.  It summarised the results of the discussions as follows:

“SAPSA will discover the requested information at its earliest convenience with reference to the requests as per the previous correspondence directed to SAPSA.

The 3 months period for finalising the disciplinary trial after commencing, as stipulated in the Disciplinary Policy is noted and will be revisited, if apt and necessary – however, it appears that ample time still exists since the initiating / commencing of the process, being 26 August 2021 when the notice of disciplinary trial was sent by email to Respondent.”

[29.2]      It added that dates for the disciplinary trial would be arranged to suit all parties, with due consideration of the precise nature and requirements for witnesses and procedures to be followed.

[30]    On 20 October 2021, a pre-trial was held regarding the disciplinary processes.

[30.1]      After dealing with Mr Combrink’s extensive requests for documents, It was indicated that the requisite dates for the disciplinary process in terms of the SAPSA Constitution and Disciplinary Policy were discussed. Mr Combrink’s counsel warned that SAPSA should ensure compliance and that Mr Breytenbach indicated that he was of the opinion that there was compliance.

[30.2]      As an “addendum” in the minutes, it was recorded that Mr Breytenbach and arranged and confirmed with the Disciplinary Committee for the proceedings  to be held on 11 November 2021, which date also suited Mr Combrink and the legal representatives.

[31]    On 11 November 2021, the Disciplinary Committee hearing took place. The question before it was whether there had been compliance with the prescribed time-frames in the Constitution and Disciplinary Code.  It concluded that there had indeed been compliance.

WAS THERE COMPLIANCE WITH THE PRESCRIBED TIME-PERIODS?

[32]    The argument on behalf of Mr Combrink rests heavily on the letter of 27 May 2021. 

[32.1]      He contends that the disciplinary processes against him must have been initiated, at latest, by the date of that letter. 

[32.2]      He reaches this conclusion largely on the basis of the statement in that letter that “It must be noted that disciplinary processes in terms of the Constitution will be and has been initiated and will be continuing to its conclusion.”  This is in turn supported by certain statements in paragraphs 27 and 28 of the founding affidavit, which are said to be inadequately answered in paragraphs 22 and 23 of the answering affidavit.

[32.3]      Building on the premise that the disciplinary processes must have initiated by latest on 27 May 2021, Mr Combrink argues that they had to be completed by 27 August 2021 (three months later) or would otherwise lapse.

[32.4]      Given that the first schedule disciplinary hearing was only on 7 September 2021, after the three month period expired, Mr Combrink contends that the processes lapsed after 27 August 2021.

[33]    I understand the logic of the argument but in my view the premise is not correct.  I cannot conclude either from the letter of 27 May 2021 or the affidavits that the disciplinary processes must have been initiated by that date. This is for three reasons.

[34]    The first concerns the effect of the letter of 27 May 2021.

[34.1]      That letter is not a model of clarity.  However, it seems that it deals with two separate matters. The first is the anonymous letter issue (which is at issue here) and the second are allegations of racist remarks (which are not at issue here).

[34.2]      In respect of the anonymous letter issue, the letter of 27 May 2021 does not say or imply that the disciplinary processes have been initiated. Rather it states that there is an investigation process ongoing and that “SAPSA hereby confirms that the investigation into the anonymous letter will continue to its conclusion.”

[34.3]      It is in respect of the racist remarks issue, which is not at issue here, that the statement is made “It must be noted that disciplinary processes in terms of the Constitution will be and has been initiated and will be continuing to its conclusion.” 

[34.4]      I therefore do not read the letter of 27 May 2021 as stating that the disciplinary processes had already been initiated in respect of the anonymous letter issue. At best for Mr Combrink, the letter is ambiguous.

[35]    Second, it does not appear to me the affidavits assist Mr Combrink. 

[35.1]      Paragraph 27 of the founding affidavit states that “the alleged identity of the sender [of the anonymous letter] was known by SAPSA when, on 27 May 2021, SAPSA sent a letter to me indicating that disciplinary processes have been initiated and that I should co-operate”.

[35.2]      In answer, Mr Breytenbach admits at paragraph 22 of the answering affidavit that “a letter was sent using the terminology ‘disciplinary processes in terms of the constitution will be and have been initiated’”. But he adds that this “letter did not however constitute a notice as envisaged in clause 5.1 of SAPSA’s Disciplinary Code… which sets out the Disciplinary Process and the initiation therefore by the Disciplinary Officer (me) only”.

[35.3]      This must be read with paragraph 27.5 of the answering affidavit, which explains that the letter of 27 May 2021 dealt with two separate issues – the anonymous letter issue and the racist remarks issues – and that the statement relied on by Mr Combrink related to the latter.

[35.4]      I therefore do not consider that there is any concession in the answering affidavit that assists Mr Combrink.

[36]    Third, and perhaps most importantly, the contemporaneous correspondence is inconsistent with the proposition that the disciplinary processes must have been initiated by 27 May 2021.

[36.1]      I have set out above the correspondence of 10 June 2021, 1 July 20121 and 19 July 2021. 

[36.2]      On 10 June 2021, the vice-chairman of SAPSA wrote to Mr Breytenbach, telling him that he had been appointed as the Disciplinary Officer and asking him to submit a report with recommendations on the anonymous letter issue.

[36.3]      On 1 July 2021, Mr Breytenbach did so.  He recommended that a formal disciplinary action be initiated against the author of the anonymous letter.

[36.4]      On 19 July 2021, Mr Breytenbach wrote to Mr Combrink.  He indicated a decision had been taken by SAPSA on 7 July 2021 to initiate a disciplinary process against Mr Combrink.  He called for representations regarding the disciplinary action, presumably in terms of clause 5.1 of the disciplinary procedure.

[37]    All of this suggests that that the decision to initiate formal disciplinary proceedings was taken on 7 July 2021 – rather than by 27 May 2021.  This means that:

[37.1]      The decision was therefore within the three month period following the date of the alleged offence, as required by clause 14.3 of the Constitution;

[37.2]      Mr Combrink was notified of the decision within 14 days of the decision, as required by clause 5.1 of the Disciplinary Code; and

[37.3]      The second three month period for the conclusion of the disciplinary processes, as required by clause 5.5 of the Disciplinary Code, commenced running on 7 July 2021.

[38]    The remaining question then is whether the second three month period had expired by 11 November 2021 when the Disciplinary Committee hearing eventually took place.

[38.1]      While 11 November 2021 was indeed more than three months after 7 July 2021, clause 5.5 of the Disciplinary Code expressly provides that the three month period may be extended by the “mutual consent” of the Disciplinary Officer and the person subject to the disciplinary processes.

[38.2]      In the present case, I am of the view that the necessary mutual consent was present.

[38.3]      The disciplinary hearing was originally scheduled for 7 September 2021, well within the three month period. 

[38.4]      It seems clear to me from the relevant correspondence and affidavits that the hearing was postponed by agreement to a mutually convenient date, primarily in order to allow SAPSA to provide the substantial information sought by Mr Combrink’s attorneys. 

[38.5]      In the course of doing so, Mr Breytenbach on behalf of SAPSA squarely raised concerns about delay in the correspondence and emphasised the need for the process to be concluded within three months, unless Mr Combrink agreed to extend the period.

[38.6]      The response from Mr Combrink’s attorneys recorded that “the 3 months period for finalising the disciplinary trial after commencing, as stipulated in the Disciplinary Policy is noted and will be revisited, if apt and necessary”, before adding that “it appears that ample time still exists since the initiating / commencing of the process, being 26 August 2021”. 

[38.7]      While the date of the initiation of the disciplinary process was in fact 7 July 2021 not 26 August 2021, the letter from Mr Combrink’s attorneys implies that the disciplinary processes could conclude any time within three months of 26 August 2021 – that is by 26 November 2021.

[38.8]      Thereafter, the date of 11 November 2021 was arranged for the hearing as a convenient date for all parties.

[38.9]      In light of these facts, I conclude that the necessary mutual consent was present to extend the three month period set out in clause 5.5 of the Disciplinary Procedure.  Given the manner in which events took place, I do not think it was open to Mr Combrink to have his attorneys agree to the hearing date of 11 November 2021 and thereafter complain that this date was outside the three month period.

[38.10]   As the then Appellate Division has explained, a party is not permitted to blow hot and cold:

“One or other of two parties between whom some legal relationship subsists is sometimes faced with two alternative and entirely inconsistent courses of action or remedies. The principle that in this situation the law will not allow that party to blow hot and cold is a fundamental one of general application.”[5]

[38.11]  The Constitutional Court has made the same point:

“The principle of the right of election is a fundamental one in our law. …  When exercising an election, the law does not allow a party to blow hot and cold…””[6]

[39]    In all the circumstances, I am of the view that the Disciplinary Committee did not commit an error of law in reaching the decision that the disciplinary processes had not yet lapsed.

[40]    It follows that the application must be dismissed.

COSTS

[41]    That leaves only the question of costs. 

[42]    Ordinarily, Mr Combrink would be liable for the costs of SAPSA.  However, I am mindful of the Biowatch principle[7] that applies when a litigant asserts constitutional rights via litigation and which has been held to apply to litigation relying on PAJA.[8]

[43]    In light of that consideration, I have decided that no order should be made as to costs.

[44]    I therefore make the following order:

[44.1]      The application is dealt with by way of urgency.

[44.2]      The application is dismissed.

[44.3]      There is no order as to costs.

 

S BUDLENDER

ACTING JUDGE OF THE HIGH COURT

 

 

 

Counsel for the applicant:             IZ Pansegrouw instructed by Pritchard Attorneys

 

Counsel for the respondents:        JG Botha instructed by Peter Le Mottee Attorneys

---