IN THE HIGH COURT OF SOUTH AFRIC 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

and

JUDGMENT

DAVIS, J

This is an application of an order reviewing setting aside the finding of a disciplinary tribunal, and the appeal tribunal, constituted by the first respondent together with certain ancillary relief related thereto.

The disciplinary proceedings related to the conduct of the first applicant at a rugby match between the second applicant and False Bay RFC which took place on 6 June 2009.
The first applicant was found guilty of contravening the bylaws and the counsel of the WPRFU ("the Bylaws") for offences which includes eye-gouging of an opponent, physical abusive of the match, official and accordingly he was suspended from rugby for an effective period of five years.

It is important to tease out these facts a little bit more fully. Disciplinary proceedings were instituted against the first applicant in respect of his conduct during a match which took place on 6 June 2009 at the Daljosafat stadium in Paarl.

First Applicant had received a red card during the match for eye-gouging an opponent. Subsequently to his being sent off, he then ran onto the field again to confront another player from the opposing team. This led to a further, as a result of which, the referee had no alternative but to call off the match. By now tempers were running high and match officials had to be escorted off the field by the management of Second Respondent. The referee, as he was being escorted off the field, was then struck in the face by a water bottle which had been thrown at him by the First Applicant.

Given that this conduct which even by the standards of the robust game of rugby, fell far outside of anything that could be expected   by,  what     might tentatively  may  be  called  the reasonable rugby player, first applicant charged with contravening a series of the bylaws including:
1. Involvement in action which was detrimental to the best the interests of the First Respondent and the game of rugby.
2. General misconduct against an opposing player.
3. Physical abuse of the match, referee.
4. Physical abuse of an opposing team official.

On 11 June 2009 a disciplinary hearing was conducted by a Tribunal which was chaired by Mr Justice Henney. Mr Justice Henney found first applicant guilty of the first three offences, but applicant was acquitted on the charge of physical abuse of an opposing match official.

He was suspended from rugby for five years. Pursuant this decision, he and Second Applicant appealed. The appeal hearing was heard by an appeal of tribunal chaired by Mr Allan Butler on 11 November 2009.

A second disciplinary hearing was then conducted on 2 December 2009, chaired by Ms Elinza Reynolds. First Applicant was again found guilty on the three offences of which he had been found guilty in the first case and was suspended for five years.

First and Second Applicants appealed against these findings and an appeal was then heard by an appeals tribunal chaired by Mr K Kiewietz on 23 June 2010. On 27 July 2010 this tribunal confirmed the findings of the second disciplinary tribunal together with the sanction to be imposed by the latter body.

The applicants have not been immune from further controversy. It appears that following a complaint by another club, that the second applicant had fielded first applicant despite his suspension. The second applicant was charged in July 2011 with contravention of bylaw 16.6.9 for playing a suspended player in club matches during the 2011  rugby season.

A disciplinary enquiry was due to be held in this regard, but this particular dispute, I should stress, is not before this court. It is about the first set of offences and the subsequent hearings that the present dispute turns.

These proceedings culminated in an application by the applicant for a review and setting aside of the findings of disciplinary tribunals and appeal tribunal and was launched on 2 August 2011.

The application

It is regrettable that this dispute has been made all the more complex as a result of a founding affidavit which is truly in an appalling state and, which in significant part, is almost incomprehensible. To the extent that it is possible to parse the affidavit, applicants' case can be distilled as follows:

"The Appeals Committee, the first respondent, despite the provisions contained in Bylaw 17.1.1, decided without consulting the applicants to order that a new disciplinary hearing on the same facts be held and a new disciplinary hearing was subsequently held on 2 December 2009 (even that date is incorrect in the affidavit for it states 2 December 2011)"

A further claim in this affidavit, was that at the second hearing the chair, Ms Reynolds, and her deputy, Mr Arendse, should have recused themselves and accordingly the second set of proceedings stands to be set aside.

The argument regarding the recusal of Ms Reynolds was not raised by Mr Filand, who appeared on behalf of the Applicants during argument, although he continued, albeit very softly, to contend that the recusal of Mr Arendse was justified.

A new application, it is argued in the ordinary course, should be brought under Rule 53 of the Uniform Rules of Court unless it can be contended that the matter is covered by the Promotion of Administration of Justice Act, 3 of 2000 ('PAJA').

It appears that the applicants did not invoke Rule 53 nor did they follow the procedures prescribed therein.  As noted, they have hardly set out their case with any clarity in the founding affidavit in terms of which a specific legal basis for the application has been laid.

Ms van Huyssteen, who appeared on behalf the respondents, submitted that in this particular case, the decisions of the respondent could not constitute administrative action for the purposes of PAJA and the review application cannot be brought in terms of PAJA. Accordingly, the application was not subject to the requirement that it must be brought within 180 days in terms of Section 7 of PAJA. However, she submitted that the application for review had to be brought within a reasonable period and that the 180 day period contained in PAJA was indicative of what constituted a reasonable period.

There is no explanation proffered by the applicants for the delay in the bringing of this particular application, where all the relevant events took place in 2009 and 2010, beyond the bald allegation they could not bring their application at an earlier stage as the first respondent "did not co-operate to have the review finalised earlier."

I am unclear as to the meaning of this particular averment within the context of this dispute.

Ms van Huyssteen submitted the review application was prompted by the decision of first respondent to institute disciplinary proceedings against second respondent for fielding a suspended player, i.e. the disputed disciplinary hearing which is not before this court. Accordingly, in her view, the review application is being brought with the ulterior motive of derailing these later disciplinary proceedings. For reasons which will become apparent, it is unnecessary for me to examine this particular line of argument.

Leaving aside the question of delay, I turn to the other grounds for review in the present case.

It therefore matters for the resolution of this dispute whether this review application falls under this regime or under PAJA , for if it falls under the latter, one then must locate the grounds of review in the appropriate sections of PAJA.

"I can find nothing in the general language of the definition of administrative action in PAJA that demonstrates a clear intention to exclude sporting bodies that regulate their sport in terms of a constitution or rules. No such exclusion appears from the language itself which profound a different test of exercising a public power or performing a public function. Sport has a substantial influence in our society and can involve substantial sums of money as well as exercising control over who may earn their living from involving in sporting activities. Sport raises important public issues as is apparent from the fact that present seem fit to appoint commissions of enquiry into both rugby and cricket." para 22.

"I have sketched above the directions of the appellant. There seems to be much to be said for the proposition that those are public functions and involve the exercise of public powers, albeit by a private body, at least in so far as they impinge upon the right of individuals to participate in horse racing and to earn their living from it. This case is concerned only with the question of the exercise of disciplinary powers and not with other matters under the aegis of the appellant and nothing that I have said should be construed of suggesting every decision by appellant constitutes administrative action reviewable under PAJA any more than every decision by an organ of State constitutes administrative action" para 27.
By contrast, the majority judgment of Levinsohn DJP, as noted above, adopted the opposite stance. The learned Deputy Judge President said thus:

"I am not sure that the size of the sporting body and the extent of its commercial enterprise should be the yardstick to determine whether its exercises a public function or not. Persons who are members of less visible sporting bodies could justifiably claim that there would be a lurking inequality if that should be the law's approach in domestic disciplinary tribunals. In my view, it is in the public interest that there be uniformity in the laws approached by these tribunals. In my opinion, it is doubtful whether the frameworks of the Constitution and the legislature in an activity PAJA intended to bring such domestic tribunals under its umbrella. It may well be an aspect which needs to be dealt with in the future by the legislature." paras 5-6.

In my view therefore, this review falls within the context of PAJA in that the decisions which the applicants seek to impugn and which have been made by first respondent constitute decisions which, in terms of Section 1 of PAJA, are decisions taken by "a natural or juristic person other than an organ of State when exercising a public power or performing a public function in terms of an empowering provision which adversely affects the rights of any person and which has a direct external legal effect."

This interpretation means the provisions of PAJA must be examined to determine the merits of this case. It is to those that I now turn.
Evaluation

In the present case on the basis of the averments made out in the founding affidavit, to which I have already made reference, there is no basis by which these disciplinary hearings have violated any of the principles of natural justice and are captured in Section 3 of PAJA. Indeed, if the common law was to be applied, there would be no difference in the conclusion.

It appears from the facts, as I have set them out, that first respondent was fastidious in ensuring that first applicant receive a proper and fair hearing; hence the opportunity to present his version of events, the referral by the first appeal tribunal to a second tribunal and the opportunity to appeal yet again.

As to the argument with regard to recusal, the only point which was raised with regard to Mr Arendse, was that he happened to be an office bearer of a club which had also been threatened by relegation (i.e. like second applicant). Somehow it was suggested that this was going to cloud his judgment; without more hardly sufficient to justify the application as brought in this case, particularly, when there was no suggestion of any such difficulty when the second hearing was so heard.

DAVIS, J

04.11.2011/12:02-12:30/RV